A Bunt, Not a Swing for the Fences

Times Staff Writer

If the sun had come up in the West on Monday morning, Washington would not have been more disoriented than it was in the first hours after President Bush nominated White House Counsel Harriet E. Miers to replace retiring Justice Sandra Day O’Connor on the Supreme Court.

Bush’s selection -- for a decisive swing seat on the court -- of a longtime aide with virtually no public record on constitutional issues left both parties in a state of highly agitated confusion and immediately visible division.

“The word would be flummoxed,” said Colleen Parro, executive director of the Republican National Coalition for Life. “We don’t have any idea how she would measure up, because she doesn’t have any available record.”

For a president whose aides regularly tout his commitment to bold change -- to “swinging for the fences” -- the Miers nomination struck many on both sides as unusually defensive: more like a bunt than a bid for a home run.


In selecting Miers, Bush passed over a long list of candidates who would have stirred greater enthusiasm among conservatives and more anxiety among Democrats.

This candidacy may have reflected a genuine desire for a conciliatory choice; during Bush’s consultations with influential senators, Senate Minority Leader Harry Reid (D-Nev.) suggested that he consider Miers.

But Bush has rarely taken Senate Democrats’ advice before, and the decision might also have reflected a pragmatic desire to avoid a divisive fight while he faces some of his lowest approval ratings ever and troubles at home and abroad.

“He’s a bold-stroke artist, but he’s always been someone who adjusts his approach to fit the circumstances,” said Bruce Buchanan, a political scientist at the University of Texas. “His political capital is diminished, and his opponents ... are emboldened. I think he’s reading the circumstances he finds himself in and adjusting accordingly.”

The risk in a “safe” nomination is that the very lack of detail on her views that makes Miers a difficult target for liberals could also reduce the willingness of conservatives to defend her.

“There is a great deal of disappointment within the movement,” said Paul Weyrich, the veteran social conservative leader. Whether her candidacy was driven by shrewdness or weakness, Miers is a favorite for confirmation simply because a president’s nominees are almost never defeated while his party controls the Senate.

But the wildly divergent responses underscore the inherent unpredictability of a confirmation process involving a nominee who has left few public traces of her legal thinking and remains almost unknown outside Bush’s inner circle.

Based on the initial reactions, the Miers nomination has the potential to divide Democrats, just as Bush’s selection of John G. Roberts Jr. for chief justice did. Many Democrats on Monday breathed a sigh of relief that Bush had not selected a more clearly identified conservative. Reid lavishly praised Miers during a joint appearance in which he stopped just short of an endorsement.


But most other leading Democrats were noncommittal, and the party will face enormous pressure from their allied interest groups to resist Miers more than it did Roberts: Roberts and the man he replaced, William H. Rehnquist, are ideologically similar, but as a replacement for O’Connor, Miers could shift the court’s balance of power.

Despite Miers’ low profile, her nomination, in some senses, was not surprising. Bush prizes loyalty and often selects his closest allies for the choicest positions. As White House counsel, Miers was directing Bush’s search for his next nominee; by selecting her, he followed the precedent he established when he chose Dick Cheney, the head of his vice presidential search team in 2000, to fill that job.

But Bush surprised both sides by selecting a nominee about whom so little is known.

Since the Senate in 1987 rejected Robert H. Bork, President Reagan’s intellectually combative nominee for the Supreme Court, presidents have favored candidates with relatively few public writings or decisions that provide obvious targets for their opponents. Roberts’ thin paper trail, for instance, plainly made it more difficult for Democrats and their allies to ignite opposition against him.


But with Miers, Bush may have taken this approach to a modern height. On issues including abortion, federal regulation, civil rights and the balance between executive and legislative power, her views are a mystery to both parties.

On Monday, both sides were reduced to scavenging for hints about her feelings. Some Democrats pointed nervously to her efforts, as a private attorney in 1993, to require the American Bar Assn. to hold a referendum on whether to revoke its policy endorsing legalized abortion.

But Parro, a Dallas activist who watched Miers on the City Council there in the late 1980s, said it was unknown whether Miers launched that effort because she opposed legal abortion or because she believed it was inappropriate for the ABA to take a position on such an issue.

Parro finds it more significant that Miers contributed $1,000 to Al Gore’s Democratic presidential campaign in 1988.


“That says to me this is not a happy appointment for pro-life people,” she said.

Yet many in both parties are resigned to continued uncertainty over her thinking because she has committed so little of it to paper -- and the precedent is so strong for Supreme Court nominees to avoid decisive answers during their confirmation hearings.

That uncertainty itself could prove the driving force in the maneuvering over Miers’ nomination.

Indeed, it has already opened the fundamental divide among conservatives. Those praising the nomination, in effect, are putting their trust in Bush, not Miers.


Even if they don’t know Miers, these conservatives argue, Bush does -- and he would not elevate to the court anyone who did not share their views.

“I trust him,” conservative talk show host Hugh Hewitt wrote of Bush on his website Monday. “So should his supporters.”

But other conservatives contend that they should not be forced to take the nominee on faith, especially because the Republican-controlled Senate is likely to approve almost any nominee Bush selects.

Former Bush speechwriter David Frum, the author of a book mostly praising the president, wrote Monday on the National Review magazine’s website that Bush should have chosen a nominee with an unequivocal record on the social and economic issues most important to his political base.


Miers, Frum wrote, is “a lovely person: intelligent, honest, capable, loyal.”

“But there is no reason at all to believe either that she is a legal conservative or -- and more importantly -- that she has the spine and steel necessary to resist the pressures that constantly bend the American legal system toward the left.”

Uncertainty over Miers’ views could shape the Democratic response too.

One senior Democratic Senate aide predicted that since Democrats were unlikely to draw out Miers too far on her legal thinking, the debate might turn more on her qualifications and whether her appointment represented an example of cronyism -- an especially charged word these days, given the controversies over the federal response to Hurricane Katrina.


The paucity of information could also encourage more Democrats to stress the argument some raised about Roberts -- that their lack of certainty about his views was itself a reason to oppose confirmation.