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Warren? Or Burger? A Matter of Judgment.

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By Michael A. Fletcher and Shailagh Murray
Washington Post Staff Writers
Wednesday, October 12, 2005

This much is clear: One of the former Supreme Court justices most admired by nominee Harriet Miers is Warren E. Burger. But just how quickly Miers recalled his full name and whether she ever referred to him simply as "Warren" is now a matter of dispute.

Miers noted her admiration of Burger during a meeting last Wednesday morning with Sen. Patrick J. Leahy (Vt.), the ranking Democrat on the Judiciary Committee. No staff members were present during the session, which took place in Leahy's office and lasted just over an hour.

But on Wednesday night, Leahy relayed highlights of the conversation to a group of senators and their aides in a gathering off the Senate floor.

One question he said he asked Miers was which Supreme Court justices she holds in high regard, and she answered Oliver Wendell Holmes and Burger, Leahy spokeswoman Tracy Schmaler said yesterday. Several people who were present at the gathering Wednesday night said they heard the senator describe Miers as stumbling over Burger's name, at first calling him "Warren." In identical accounts provided to The Washington Post by two of those present, Leahy asked Miers to clarify whether she meant Warren Burger or the late Chief Justice Earl Warren, a liberal icon, and Miers replied that she meant Burger.

A brief version of the exchange appeared in a Post story on Friday, and neither the White House nor Leahy's office raised concerns about it. While preparing a story for Sunday that again recounted the exchange, a reporter asked White House officials about the anecdote. Again, there were no objections.

But during an appearance Sunday on the ABC show "This Week," Leahy said he could not recall Miers having first said "Warren," although he reiterated that she named Burger as one of the justices she admires. "Well, that story's not really all that accurate," Leahy said when asked about the published account. Afterward, the White House said it agreed with Leahy's version of the conversation.

Schmaler said Leahy will not discuss any more details of the meeting. "Senator Leahy enjoyed the discussion with Ms. Miers and looks forward to getting to know her better as the Senate considers her nomination to the Supreme Court," she said.

The account concerns Miers's supporters for several reasons. Although she has served in several top White House posts and has built a record as an elite corporate lawyer and bar association leader over three decades in Texas, Miers has no track record on constitutional or court matters.

The exchange with Leahy as reported by The Post made her look poorly versed in court history. The story also raised eyebrows about her criteria for rating justices. Holmes is widely regarded as a legal giant, but few court historians say the same about Burger.

"It was his role in the administration of justice" that impresses Miers, said James T. Dyke, a White House spokesman.

Burger is most often remembered among court historians as "not a terribly successful chief justice," said Mark V. Tushnet, a Georgetown University law professor. Before being appointed to the high court, Burger advocated a strict-constructionist view of the Constitution, which many conservatives thought would translate into opposition to things such as school busing and abortion. But after President Richard M. Nixon appointed him chief justice in 1969, Burger frequently disappointed conservatives, never more so than when he concurred in the 1973 Roe v. Wa de decision guaranteeing the right to abortion.

Moreover, he was said by some to be a self-important and disorganized chief justice. "He was not a very good administrator" and he "wrote adequate but pedestrian opinions," Tushnet said.


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