washingtonpost.com
A Bid for Confirmation, Rather Than Convictions

By Dan Balz
Washington Post Staff Writer
Tuesday, October 4, 2005

If President Bush's goal is to shift the Supreme Court in a more conservative direction, his nomination of White House counsel Harriet Miers yesterday signaled a desire to do so as quietly as possible. The nomination appeared designed primarily to avoid a major fight in the Senate and, said skeptics on the left and right, was made out of a position of political weakness, not strength.

Bush's decision confounded both right and left, as perhaps the president's advisers had hoped. In nominating someone who caused dismay among conservative activists but who provoked little strong opposition among Democrats -- and words of praise from Senate Minority Leader Harry M. Reid (D-Nev.) -- the White House may have calculated that Bush can more easily afford some early heat from the right than a titanic struggle with Democrats that could tie up the Senate and leave him in an even weaker position three months from now.

"In some ways, it's the highest form of political camouflage," said Ross K. Baker, a political science professor at Rutgers University. "It seems to maximize the likelihood of confirmation and minimize the likelihood of a colossal ideological struggle that results in a filibuster. He seems to have a practical objective of getting the nominee confirmed."

Bush campaigned for reelection by telling conservatives he wanted to reshape the federal judiciary, but in selecting a successor to Justice Sandra Day O'Connor, the pivotal swing vote on many of the most important decisions by the court in recent years, he has in essence asked his conservative base to trust him -- rather than select any of a string of possible nominees with extensive judicial experience and clear ideological leanings.

"It's hard to explain why Harriet Miers is the right pick unless you're trying to avoid a fight about someone who has expressed a conservative constitutional philosophy," William Kristol, editor of the conservative Weekly Standard, said in an interview. ". . . Even if she does well in the hearing and turns out to be a pretty good judge, I still think it's demoralizing for the president to pass over a host of publicly identified conservative constitutionalists."

Kristol was one of a number of conservatives who posted their dismay on Web sites and in e-mails shortly after Bush announced his pick. Not long after, Vice President Cheney was on the air with conservative radio talk show hosts Rush Limbaugh and Sean Hannity defending both the choice and the president.

"We've never backed off from a fight with this Congress or any other Congress," Cheney told Limbaugh. The vice president also sought to reassure his conservative hosts that they will find Miers more than ideologically acceptable, calling her "rock-solid, from a philosophical point of view."

But the disappointment on the right was palpable. After two decades of anticipation, conservatives have hungered for a Supreme Court nominee who would hold high their banner, and they expected Bush, long described as a conviction politician, to seize this moment to help realize their dreams.

Democrats and some conservatives saw another dynamic at work yesterday. In their view, Bush faces potentially difficult fights in the months ahead over how to pay for the massive costs of rebuilding after hurricanes Katrina and Rita. Beyond that will be a restructured second-term agenda, likely to be unveiled in next year's State of the Union address.

Their conclusion is that Bush and his advisers decided he can ill afford a bruising fight and possible filibuster over his Supreme Court nominee -- that could poison the atmosphere for months to come and jeopardize his entire agenda.

The president's loyalists would offer a different view, which begins with his nomination of John G. Roberts Jr., who took his seat yesterday as the 17th chief justice of the United States. Bush won considerable praise for that nomination, and Roberts ended up winning 22 Democratic votes in the Senate. That record, Bush's supporters would say, has earned him the room to reshape the court the way he thinks best.

Some conservatives said yesterday they are confident that Miers will not prove to be another Justice David H. Souter, the New Hampshire judge who was selected by President George H.W. Bush and has disappointed conservatives by regularly siding with the court's liberals on key cases. At a minimum, the president and White House Deputy Chief of Staff Karl Rove, who has been at the forefront of reshaping the courts, know far more about Miers and her judicial philosophy, having worked closely with her for more than a decade, than Bush's father knew about Souter, giving comfort to some on the right.

"She is not one who would vacillate back and forth in a world of mushy standards, which is what I think O'Connor did," said Leonard A. Leo of the Federalist Society.

White House officials stressed that Bush also took seriously recommendations he received from some Democrats, who suggested that it was time for a Supreme Court nominee who has not been a judge. Reid was among those who made such a recommendation and mentioned Miers during a White House meeting two weeks ago, according to a spokesman.

Democrats believe Reid is now boxed into supporting Miers, unless damaging information turns up, which would cause howls with the Democratic family. "It sounds like they've called his bluff," Reid spokesman Jim Manley said of the president's decision. "But he's going to withhold judgment on ultimate consideration."

The Miers nomination provides another reminder that, on personnel matters, the president likes to follow his own instincts, even if that clashes with what his supporters want. In this case, however, the stakes are higher than usual.

If Bush succeeds in winning confirmation for Miers without a bloodbath in the Senate and she turns out to be a reliably conservative vote, his gamble will have paid off. But with 55 Republicans in the Senate and a president who has been explicit about his ambitions for the Supreme Court, it is not the way conservatives thought this nomination would play out.

© 2005 The Washington Post Company