The Right Sees a Strong -- and Wrong -- Signal

Bold conservative thinkers with clear public records need not apply.

An increasing number of conservative activists fear that is the message President Bush is sending with his two choices for the Supreme Court.

This week’s nomination of White House Counsel Harriet E. Miers, following Bush’s earlier selection of John G. Roberts Jr. as chief justice, means that the president has chosen two Supreme Court nominees with limited -- or virtually no -- public records on the key constitutional controversies dividing the parties. In the process, he’s bypassed a long list of judges with consistent conservative records on state and federal courts.

“I don’t know that there is a deliberate message -- I think he is just trying to avoid trouble -- but the message comes through: Do not be controversial, do not express strong opinions that arouse opposition,” said Robert H. Bork, the conservative legal scholar and former federal judge. Bork’s extensive writings keyed an explosive confirmation battle that culminated in his rejection by the Senate when President Reagan nominated him to the Supreme Court in 1987.

During almost five years of bruising partisan warfare on issues from taxes to Iraq, few people have ever accused Bush of dodging a fight. But that’s exactly the charge he is now facing from disgruntled conservatives.

They contend that Bush has chosen Miers, and even Roberts, largely because he fears Democratic resistance to conservatives with more concrete public records, such as appellate court Judges J. Michael Luttig and Edith H. Jones.

“Is the president sending a message that these distinguished conservatives are too controversial to be nominated for the high court, even with a Senate containing 55 Republicans?” a Wall Street Journal editorial asked Tuesday.

White House officials and some Bush allies on the right deny the charge that he is gun-shy about promoting nominees with extensive public records. They note that the president has consistently appointed known conservatives, such as Janice Rogers Brown and Priscilla R. Owen, to the powerful federal appellate courts -- even renominating them after they were initially blocked by Democratic filibusters.

“In the president’s mind, it is not disqualifying if you have a public track record of conservatism, and he has proved that through his appellate court appointees,” said White House counselor Dan Bartlett.

Bush, at a Tuesday news conference, sought to assure his supporters that Miers shared his conservative views and would remain steadfast to them.

“I know her well enough to be able to say that she’s not going to change, that 20 years from now she’ll be the same person, with the same philosophy, that she is today,” he said.

But Bush’s critics on the right maintain that his reluctance to nominate a known conservative for the Supreme Court sends a strong signal encouraging caution and consensus among conservative legal thinkers and judges.

“I suppose a lot of people are not going to want to join the Federalist Society,” said Bork, in a reference to a conservative legal group.

Both sides agree that the 1987 defeat of Bork marked a turning point in Supreme Court nominations. Since then, both parties have generally favored nominees without the detailed and controversial record he carried to the witness table.

“It’s almost become a qualification,” said Bork, a senior fellow at the conservative Hudson Institute think tank.

But Bush’s conservative critics say he has carried this tendency to a new height through his selection of Roberts, who had served just over two years as a federal judge, and Miers, who has never served on the bench or written publicly on major legal questions.

In contrast, both of President Clinton’s Supreme Court appointees -- Stephen G. Breyer and Ruth Bader Ginsburg -- had served for more than a decade on federal appellate courts. And Ginsburg had written widely as a law professor and general counsel for the American Civil Liberties Union.

Bush’s conservative critics acknowledge that Roberts’ limited public record made it more difficult for Democrats to organize against him, an advantage that Miers may also benefit from.

But the president’s critics maintain that Bush is underestimating his ability to win confirmation for a more clearly defined candidate while Republicans hold 55 Senate seats; only twice since 1930 has a president’s Supreme Court nomination been rejected while his party controlled a Senate majority.

“If Bush feels he could have put a Mike Luttig on there without a fight, he would have done it,” said Mark Levin, president of the conservative Landmark Legal Foundation and a former chief of staff to Edwin Meese III, who was attorney general under Reagan. “It’s a political calculation that he’s got enough on his table right now, and why instigate a fight?”

Luttig, of Virginia, is a favorite of conservative activists.

The critics on the right see two principal risks in choosing justices without a long pedigree. One is that without a firm anchor in conservative legal views, they will trend leftward on the court -- the way almost all conservatives believe David H. Souter, appointed by President George H.W. Bush, has done. This fear is greater about Miers because Roberts’ advocacy for conservative positions in previous GOP administrations has left the right considerably more, though not completely, confident about him.

The other fear is that the nomination of candidates without lengthy public records will discourage conservatives from advancing controversial positions that challenge legal conventional wisdom -- either in their writings or on the courts. The Wall Street Journal said that by appointing Miers, the president “missed a chance to send a message that taking firm sides in our judicial debates is not politically disqualifying.”

Bush advisors and allies say such conclusions misread his logic for the Miers appointment. They say his long personal relationship with Miers gives him more confidence about her judicial philosophy than he could obtain from reading a judge’s opinions or from a short interview.

“Harriet Miers reflects less a reticence to appoint someone with a record and more a commitment to appoint someone he knows shares his judicial philosophy,” said Leonard Leo, a former vice president of the Federalist Society now working with groups supporting the president’s court nominees.

Still, the uneasiness on the right about Bush’s decision-making has reached the point that two prominent legal conservatives this week joked that the best thing that ever happened to Roberts was the refusal by the Senate, then controlled by the Democrats, to confirm him after President George H.W. Bush nominated him to the Court of Appeals for the District of Columbia Circuit in 1992.

If Roberts had been confirmed then, his lengthy legal record might have dissuaded the current President Bush from nominating him to the Supreme Court this summer, said one of the conservatives, who asked not to be identified.