By Charles Babington
Washington Post Staff Writer
Saturday, October 15, 2005
Supreme Court confirmation battles usually involve excavations of the nominee's judicial opinions, legal briefs and decades-old government memos. Harriet Miers is the first nominee to hit trouble because of thank-you letters.
Miers's paper trail may be relatively short, but it makes plain that her climb through Texas legal circles and into George W. Bush's inner circle was aided by a penchant for cheerful personal notes. Years later, even some of her supporters are cringing -- and her opponents are viciously making merry -- at the public disclosure of this correspondence and other writings from the 1990s.
Bush may have enjoyed being told by Miers in 1997, "You are the best governor ever -- deserving of great respect." But in 2005 such fawning remarks are contributing to suspicion among Bush's conservative allies and others that she was selected more for personal loyalty than her legal heft.
Combined with columns she wrote for an in-house publication while president of the Texas Bar Association -- critics have called them clumsily worded and empty of content -- Miers may be at risk of flunking the writing portion of the Supreme Court confirmation test, according to some opponents.
"The tipping point in Washington is when you go from being a subject of caricature to the subject of laughter," said Bruce Fein, a Miers critic who served in the Reagan administration's Justice Department and who often speaks on constitutional law. "She's in danger of becoming the subject of laughter."
Blogs are posting satirical Miers correspondence featuring made-up grammatical errors. Via e-mail, authentic Miers quotations have raced around the country, prefaced by derisive comments about her qualifications.
One example, from a May 1996 letter asking George and Laura Bush to appear at a ceremony honoring her, displayed both an obsequious tone and a tortuous prose style. "I am respectful of both of your great many time commitments and I realize you receive many, many requests," she wrote. "Of course, I would be very pleased if either of you is able to participate. However, I will be pleased with your judgment about whether participating in this event fits your schedule whatever your decision. . . . I feel honored even to be able to extend this invitation to such extraordinary people."
This was among the Bush gubernatorial correspondence released this week by the Texas State Library, and posted on Web sites, including the Smoking Gun. Miers was Bush's personal lawyer and lottery commission chairman when he was Texas governor and later became his White House counsel. Her letters have provided recent fodder for sarcasm for writers such as Gerard Baker in the conservative magazine the Weekly Standard. "Miers has delivered some thundering dictums in her various legal and paralegal roles," Baker wrote in a column first published in the Times of London. He cited a 1997 handwritten card that mentioned Bush's daughters: "Hopefully Jenna and Barbara recognize that their parents are 'cool' -- as do the rest of us. . . . All I hear is how great you and Laura are doing. . . . Keep up all the great work. Texas is blessed!"
From the White House vantage point, such commentary is hardly a laughing matter. In part because she does not have a long record of serious constitutional writings -- in contrast to recently confirmed chief justice John G. Roberts Jr. -- Miers may be at particular risk of being turned into a judicial equivalent of Vice President Dan Quayle. Until his stumbling national debut, Quayle had been regarded as a bright senator from Indiana, but he never fully recovered from the initial blast of mockery.
Fair or not, late-night comics have picked up the Miers thread. NBC's Jay Leno suggested the court may need "a woman who's had more courtroom experience, like Courtney Love." CBS's David Letterman envisioned Miers exclaiming as she watched the New York Yankees botch a playoff game: "And they call me unqualified?"
Among those defending Miers is former Bush speechwriter Matthew Scully. In a New York Times op-ed column yesterday he called Miers an exacting writer and lawyer and hailed her "enormous legal ability." Earlier in the week, the Times's conservative columnist David Brooks savaged the columns Miers wrote in the early 1990s as president of the State Bar of Texas. "The quality of thought and writing doesn't even rise to the level of pedestrian," Brooks wrote. Passages he called typical of her "vapid abstractions" included: "More and more, the intractable problems in our society have one answer: broad-based intolerance of unacceptable conditions and a commitment by many to fix problems."
Fein said he is more concerned about Miers's legal thinking than her syntax, especially as outlined in her three-page letter to then-Gov.Bush on June 11, 1995, when she was the former state bar president. The letter implored Bush to veto a bill moving through the Democratic-controlled legislature that would have prevented the state Supreme Court from capping lawyers' fees.
"This proposed law does violence to the balance of power between the legislative and judicial branch of our State's government and constitutes an assault upon the powers of the Supreme Court" just as it had fallen into "Republican hands for the first time," Miers wrote.
Fein said it is outrageous to invoke separation-of-powers arguments when a legislature -- wisely or not -- tries to foster free enterprise. By citing the GOP's new control of the Texas Supreme Court, he said, Miers seemed to be seeking a partisan outcome on shaky constitutional grounds.
Research editor Lucy Shackelford contributed to this report.