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After the Home Run, a White House Balk?
Handling of Miers Nomination Cannot Stand Up to Ease of Roberts Approval

By Charles Babington
Washington Post Staff Writer
Friday, October 21, 2005

Two months after engineering a nearly flawless confirmation process for Chief Justice John G. Roberts Jr., the Bush administration's bid to add Harriet Miers to the Supreme Court has been so riddled with errors, stumbles and embarrassing revelations that some lawmakers and other observers find it hard to believe it emanates from the same White House.

At one key juncture after another, Miers has faltered where Roberts glided. Her courtesy calls on the Judiciary Committee's top two senators prompted conflicting tales of curious comments that she may or may not have made. Her answers to the committee's questionnaire included a misinterpretation of constitutional law and were deemed so inadequate that the panel asked her to redo it. She revealed one day that her D.C. law license had been temporarily suspended -- and said the next day that the same thing had happened in Texas -- because of unpaid dues.

Most glaring of all, say activists in both parties, the White House failed to foresee the outcry from conservative activists who are leading the opposition while liberals mostly stand on the sidelines in amazement.

"I'm sort of astonished by it," said George Washington University law professor Jonathan Turley, who has followed the nominations closely. "It's like a completely different team at the White House is handling it."

Several conservative activists who avidly backed Roberts are keeping silent or offering tepid public endorsements of Miers, using private channels to express their dismay to the White House. Yesterday, in one of the twice-weekly conference calls involving conservative leaders and organized by liaisons to the White House, several participants said Miers should stop paying visits to senators because they do more harm than good. Details of the call, first reported by NationalReview.com, were confirmed by a participant who said no one spoke in favor of continuing the visits.

Miers, who is the White House counsel, called on two Democratic senators yesterday but declined to answer reporters' questions about her nomination.

Allies of the administration say Miers is having a rocky start because she is far less known in legal circles than was Roberts, and because she never was a judge. "This whole process is not used to a nominee who is not a sitting judge," said Jay Sekulow, chief counsel at the American Center for Law and Justice and a key outside strategist who has worked for both nominations. "Everybody's been kind of feeling their way over the last few weeks, and now it's moving into a phase where everybody is getting familiar with their role and the situation," he said, noting that Miers responded quickly Wednesday to the Judiciary Committee chairman's demand for more written answers.

President Bush said yesterday it is an asset that Miers has never been a judge. "I thought it made a lot of sense to bring a fresh outlook of somebody who's actually been a very successful attorney and . . . a pioneer for women lawyers in Texas," Bush told reporters at the White House. He said Miers will answer all the senators' questions, and "out of this will come a clear picture of a competent, strong, capable woman" who "is not going to legislate from the bench."

But a number of lawmakers, aides and advocates tracking the nomination say the picture thus far has been far from clear, and Miers has often looked less than competent. They cite, for example, her Oct. 5 courtesy call on Sen. Patrick J. Leahy (Vt.), the top Democrat on the Judiciary Committee, which will conduct her confirmation hearing starting Nov. 7.

Leahy asked Miers to name her favorite Supreme Court justices -- a standard question in such get-acquainted meetings. After some apparent hesitation, she named Warren E. Burger, a conservative who voted for the Roe v. Wade decision legalizing abortion. The answer baffled many conservatives, who note Burger is lightly regarded by court historians and is tied to the Roe ruling that many on the right revile.

Miers had no more luck when she met Monday with committee Chairman Arlen Specter (R-Pa.). Specter told reporters that Miers had embraced the Supreme Court's 1965 Griswold v. Connecticut decision that was a precursor to Roe . Within minutes of his comments making the news wires, Miers phoned Specter to say he had misunderstood her.

Specter publicly agreed to accept her comments, but he stuck to his version of the visit, and Senate insiders said they are surprised that the nominee stumbled into a public dispute with the committee chairman during their first substantial conversation.

Veteran aides said they also could not understand why White House officials who vetted Miers did not discover the two lapsed law licenses and divulge them simultaneously, making them a one-day story. Nor could they explain why administration lawyers allowed Miers to answer a question about constitutional law in which she appeared to confuse the issues of "proportional representation" of minorities on elected boards with one-man, one-vote rules guiding legislative redistricting.

"I think she got confused," said Turley, one of several law professors who said Miers misstated the Equal Protection Clause in her answer. "It's very surprising."

A lawyer for a conservative group that backed the Roberts nomination but has grumbled about the Miers nomination was equally puzzled. "I'm guessing they wanted to say she didn't get any help" with the questionnaire, the lawyer said.

David Frum, a former Bush speechwriter who strongly opposes the Miers nomination, said Roberts was so thoroughly versed in constitutional law -- and so at ease chatting with senators without revealing too much of his thinking -- that it did not matter if he received light vetting or minimal coaching from the White House. "When you make a good choice, nobody knows or cares how bad a vetting job you did," Frum said in an interview.

Frum said he did not know details of the White House's look into Miers's background but added, "to have someone vetted by her deputy" is an invitation to overlook possible problems. Miers told the Judiciary Committee she conferred with her deputy, William Kelley, along with White House Chief of Staff Andrew H. Card Jr., Bush and Laura Bush about her possible appointment to the Supreme Court.

Charles R. Black, a Republican lobbyist with close White House ties, said one problem with the nomination is that Miers is unable to push it as a behind-the-scenes facilitator, as she did for Roberts. "Everybody said she was really helpful" in getting the chief justice confirmed, Black said.

"The expectation from the White House and their friends like me is that she will probably do a very good job at the hearing and probably be confirmed," he said.

Some committee members are not so sure. "It's going to be tough for her, and anything that appears to be a mistake, you know, is not good," Sen. Jeff Sessions (R-Ala.) said this week. A Democratic committee member, Dianne Feinstein (Calif.) said yesterday: "This is an uphill road all the way."

Staff writer Peter Baker contributed to this report.

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