Analysis

Conservatives' Tactics Against Miers May Backfire Next Time

"The Republican senators are changing every rule they attempted to set" in the Roberts confirmation, Sen. Edward M. Kennedy (D-Mass.) told reporters. (By Lauren Victoria Burke -- Associated Press)

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By Charles Babington
Washington Post Staff Writer
Sunday, October 30, 2005

Conservative activists crippled Harriet Miers's Supreme Court nomination largely by challenging her judicial philosophy, debating the importance of her religious beliefs, demanding to see White House documents and derailing her before she reached a Senate vote. Those tactics may make it harder for them to defend President Bush's next pick, expected by many to be a solid conservative, according to a number of Democrats, independent analysts and even some conservative commentators.

They are struck by differences between the Miers nomination process and that of John G. Roberts Jr., who was confirmed as chief justice a month ago. When liberals mentioned a possible filibuster of Roberts, Republicans insisted on an "up-or-down vote," which Miers never received. Virtually all GOP senators defended the White House's refusal to surrender documents concerning Roberts, but some of them demanded comparable documents regarding Miers.

And whereas Republicans said Roberts's religious beliefs should not be a subject of Senate inquiry, Bush cited Miers's church affiliation and religious convictions as one of her chief qualifications. Now the Democrats may be in a stronger position to wage a filibuster or demand more detailed documentation and explanation of the next nominee's positions if they conclude he or she is out of the judicial mainstream.

"The Republican senators are changing every rule they attempted to set" in the Roberts confirmation, said Sen. Edward M. Kennedy (D-Mass.), the Judiciary Committee's most senior member. "They flip-flopped on whether judicial philosophy and religious beliefs are appropriate" topics of Senate probing, he said. "And they flip-flopped on whether Harriet Miers deserved an up-or-down vote."

Marcia D. Greenberger, founder of the National Women's Law Center, said: "I don't know how people can, with a straight face, make some of the same arguments they made in the Roberts nomination after what they said so vociferously with Miers."

Some conservatives agree. Commentator Hugh Hewitt, in a New York Times op-ed column Friday, noted that several Senate Republicans campaigned in 2002 and 2004 on the "up-or-down vote" issue for judicial nominees. "Now, with the withdrawal of Harriet Miers under an instant, fierce and sometimes false assault from conservative pundits and activists, it will be difficult for Republican candidates to continue to make this winning argument: that Democrats have deeply damaged the integrity of the advice and consent process," wrote Hewitt, a law professor at Chapman University in California.

Many of his fellow conservatives reject this argument. "Harriet Miers was heading toward an up-or-down vote" when she decided to withdraw, said Brian McCabe, president of Progress for America, which backed Roberts and Miers. He said there was no talk of a filibuster -- in which 40 of the Senate's 100 members can prevent a question from reaching a vote.

Nan Aron of the liberal Alliance for Justice disagrees. Key Republican senators working quietly with the White House "orchestrated the withdrawal" of Miers, she said. "They can no longer say that up-or-down votes are necessary in every situation," and that will undercut the argument that a Democratic-led filibuster is out of bounds.

As for executive branch documents, the White House invoked attorney-client privilege for both Roberts and Miers, conservatives noted. But Democrats say it was GOP senators who were inconsistent. They note that Sens. David Vitter (R-La.), Sam Brownback (R-Kan.), Lindsey O. Graham (R-S.C.) and others called on the Bush administration to divulge more Miers-related documents than it was willing to yield.

Bush's emphasis on Miers's religious convictions is more problematic for some conservatives. "There were a lot of criticisms of that," conceded Ed Whelan, president of the Ethics and Public Policy Center, a conservative think tank that criticized Miers. "Some were put in a box trying to come up with arguments to sustain the nomination."

But for the most part, he said, conservatives have argued that a judicial nominee's religious beliefs should not be seen as a predictor of court rulings. Whelan said Democrats will have little success if they try to score points on this issue in next confirmation fight.

But the liberal group People for the American Way already is trying. Until recently, it said, the Republican right contended "that inquiring about a nominee's religious views was off-limits" and "there should be no abortion 'litmus test' for confirmation. . . . But shortly after the nomination of Harriet Miers to the Supreme Court, the Right all but abandoned these 'principles.' "

Some legal scholars say conservative activists and their Senate allies may have to explain why they pressed to know Miers's views on abortion and why they were openly troubled by her comments about "self-determination" concerning school prayer and other issues. "A lot of Republicans have put ideology on the table now by saying Harriet Miers wasn't a true conservative and by objecting that she wasn't clearly opposed to Roe v. Wade ," said Cass Sunstein, a constitutional law expert at the University of Chicago.

Whelan said Roberts easily handled these questions by showing that he had a basically conservative outlook and a solid grasp of constitutional issues. Bush's next pick presumably will have similar traits, he said.

"The lesson from this experience is how important it is to have someone with an objectively discernable judicial philosophy, and a sound one," Whelan said. As for all the accusations of hypocrisy, he said, "Democrats may blow some smoke based on this, but I don't think there's any substance to it."


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