Miers to Face Tougher Time Than Roberts in Hearings

Supreme Court nominee Harriet Miers makes a courtesy call on Judiciary's top Democrat, Patrick J. Leahy (Vt.).
Supreme Court nominee Harriet Miers makes a courtesy call on Judiciary's top Democrat, Patrick J. Leahy (Vt.). (By Melina Mara -- The Washington Post)
By Peter Baker and Dan Balz
Washington Post Staff Writers
Sunday, October 9, 2005

In a room at the Justice Department this summer, Harriet Miers listened silently as young lawyers playing senators threw question after question at John G. Roberts Jr. at a secret practice hearing, or "murder board." She watched as he rattled off Supreme Court cases and, as one participant put it, "artfully dodged" inquiries he did not want to answer.

Now it's her turn. After an unexpectedly rocky first week, Miers's nomination to the Supreme Court appears likely to hinge on her performance before the Senate Judiciary Committee at hearings that probably will open early next month, according to strategists in both parties.

The question is how much she learned from Roberts's murder boards and how much constitutional law she can master in cramming sessions over the next several weeks.

Unlike Roberts, who made a career arguing before the high court and commands the nuances of obscure rulings, Miers never practiced that sort of law, nor did she, in her various behind-the-scenes roles at the Bush White House, demonstrate the sort of skill at public performance that Senate hearings demand.

Given her lack of background, lawyers and politicians predict, her hearings could easily turn into a stump-the-nominee contest. And following Roberts, as Sen. Sam Brownback (R-Kan.) put it last week, will be like "following Elvis."

"The hearings for her are the defining moment," said Kenneth M. Duberstein, the former Reagan White House chief of staff who shepherded two Supreme Court nominations through the Senate for President George H.W. Bush. "This is prime time, when America really gets its first look at her and the first time they'll really be listening."

Sen. Charles E. Schumer (D-N.Y.), like Brownback a Judiciary Committee member and expected to be one of Miers's tougher interrogators, said her testimony could determine the outcome. With conservatives disgruntled about her selection and liberals disinclined to support any Bush nomination, Miers faces the prospect of tough grilling from both sides.

"These hearings are going to be crucial -- more crucial than any in a long, long time," Schumer said in an interview. "It's not going to be an easy hearing for Harriet Miers. Roberts was sure of his right flank, and she can't be. And Roberts, of course, is brilliant. No one will be as good. He spent his life doing this. Harriet Miers is a very capable lawyer but is not someone who has spent her life litigating before the Supreme Court."

Bruce Fein, a Republican lawyer who helped prep Sandra Day O'Connor for her confirmation hearings in 1981, put it more bluntly. "It's almost like putting you and me into MCI stadium and saying, 'Play against Michael Jordan at his peak,' " he said. "That's what it's going to be like up there."

Miers, a Southern Methodist University graduate who was President Bush's personal attorney and now serves as White House counsel, may not have Roberts's command of constitutional law, but colleagues predicted she will survive the questioning with relative ease. "Harriet is always thoroughly prepared for everything she does," said her friend Karen P. Hughes, the longtime Bush adviser who now is an undersecretary of state. "I'm confident she will be very prepared, very composed and will make a very strong impression."

In his weekly radio address yesterday, Bush praised Miers as "a remarkable woman and an accomplished attorney" who would be "a good conservative judge" on the high court. "Throughout her life, Ms. Miers has excelled at everything she has done," Bush said. "She's been a leader and a trailblazer for women lawyers, and her work has earned the respect of attorneys across the nation."

The challenge for Miers will be different than for Roberts, who breezed through his hearings and won confirmation last month as chief justice, demonstrating versatility with the issues, even though he resisted giving his own views. Roberts had to explain himself to the party's conservative base, which had some questions about his ideology, but did not have to prove his legal and constitutional credentials, noted Jay Sekulow, chief counsel of the American Center for Law and Justice and an adviser to the White House on judicial nominations. Miers must deal with both.

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