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Bush's Dangerous Choice

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By E. J. Dionne Jr.
Tuesday, October 4, 2005

President Bush certainly thought he was making the safe and clever choice when he nominated Harriet Miers to the Supreme Court. Precisely because the choice was too clever it could prove to be dangerous to both Bush and his party.

In selecting his White House counsel, Bush seemed determined not so much to satisfy anyone in particular as to offend no one at all. Many voices insisted that Justice Sandra Day O'Connor needed to be replaced by a woman. Democrats who had supported Chief Justice John Roberts said they would battle hard against any right-wing ideologue. Social conservatives said they would not be satisfied with Attorney General Alberto Gonzales or anyone else who showed signs of being treacherously moderate on abortion.

Miers got to the top of the list because she could check the first box and leave the other two blank. Since so much of her career has been outside public view -- either as a corporate lawyer or as a loyal Bush insider -- Democrats eager to keep a staunch conservative off the court have no idea where she stands on most issues. The paper trail on her views might not even fill one drawer of a filing cabinet.

The social conservatives have nothing obvious to hold against her. Her one major public intervention on the abortion question was to push for a referendum to move the American Bar Association from support of Roe v. Wade to neutrality.

Yet that may be enough to unsettle the liberals without satisfying the conservatives. The early returns from certain key conservative precincts were not good for Miers. Manuel Miranda, a conservative activist on judicial issues, said the choice of a nominee "with no judicial record" was "a significant failure." William Kristol, the conservative editor and strategist, said the selection left him "disappointed, depressed and demoralized."

With the Miers nomination, Bush is indeed signaling that after a summer of discontent over Iraq followed quickly by the Hurricane Katrina catastrophe, he does not have the stomach for a big fight. He was not willing to spend his dwindling political capital either on behalf of his good friend Gonzales or for a justice in the mold of Antonin Scalia or Clarence Thomas, the duo whose jurisprudence Bush has often praised. The Miers pick risks looking like a sign of weakness.

What's odd is that even at the level of tough, practical politics -- the arena in which Bush and his senior lieutenant Karl Rove have excelled until recently -- this choice may open doors that the president would prefer to hold shut. At the very moment Bush is battling charges of cronyism, Bush has sought an appointee from about as deep inside his inner circle as he could go. No one will miss the fact that, back in 1998, it was Miers who was responsible for looking into Bush's Vietnam era draft record to prepare for damage control.

And so Bush has put himself and his administration's goal of aggrandizing presidential power on the line in a way the Roberts nomination did not. Sen. Patrick Leahy, the ranking Democrat on the Judiciary Committee, who voted for Roberts, could not resist noting that Miers "has a reputation for being loyal to this president, whom she has a long history of serving as a close adviser and in working to advance his objectives." Leahy added: "It is important to know whether she would enter this key post with the judicial independence necessary when the Supreme Court considers issues of interest to this administration." Those are fighting words, carefully chosen.

It's also strange that Bush, whose greatest obsession has been to maintain his political base, would select a candidate who may end up without any base at all. She could face opposition from the right, whose partisans devoutly wished for a nominee with strong judicial credentials and a clear conservative record. Under other circumstances, this might entice liberals into hoping Miers is a closet moderate. But their instinctive mistrust of someone so close to Bush will keep many liberals from coming her way.

Roberts offered a little something to everyone -- and that included even those who opposed him but acknowledged his credentials and his intelligence. Miers has been thrust into a battle for which her career as a Bush loyalist is more liability than asset, and in which the clean slate she puts forward could be filled in primarily by her opponents.

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