Bush Picks Another Cypher For Supreme Court

by Jim Lobe

(IPS) WASHINGTON -- Increasingly under siege on a range of fronts from Iraq to hurricane reconstruction, President George W. Bush Monday nominated White House Counsel Harriet Miers, a long-time loyalist, to a critical and possibly decisive seat on the powerful nine-member U.S. Supreme Court.

His choice of Miers to replace the Court's first female justice, Sandra Day O'Connor, evoked consternation and even some anger from Bush's far-right supporters, who are worried that Miers may not be as ideologically committed as they are on issues like abortion, affirmative action, and state-church relations.

Their great fear is that Miers, like O'Connor before her, could turn out to be an ideological maverick who may well migrate leftwards, a familiar route for Supreme Court justices with life tenure. As recently as 1988, she made thousand-dollar contributions to the Democratic National Committee and to the presidential campaign that year of former Senator Al Gore.

"It is very hard to avoid the conclusion that President Bush flinched from a fight on constitutional philosophy," wrote William Kristol, editor of the neo-conservative Weekly Standard. "Miers is undoubtedly a decent and competent person, (but) her selection will unavoidably be judged as reflecting a combination of cronyism and capitulation on the part of the president."

Monday's nomination, which came on the same day as Bush's pick for Supreme Court Chief Justice, John Roberts, was formally sworn in after his Senate confirmation last week by a comfortable 78-22 margin, comes at a time when the president's approval rating is at the lowest level since his 2001 election.

Battered by the continuing violence in Iraq, the storm of criticism that followed the federal government's tardy response to the destruction wrought by Hurricane Katrina on New Orleans and the Gulf Coast at the end of August, and new charges of corruption and cronyism in both the White House and the Republican leadership in Congress, including last week's indictment of Tom Delay, the powerful Majority Leader of the House or Representatives, Bush has been uncharacteristically on the defensive and even willing to take into account the views of key Democrats, some of whom reportedly suggested Miers as a candidate they would be inclined to support.

But some liberal groups counseled caution, noting reports that Miers was a very active member of a "fundamentalist" Christian church in Dallas whose ministry has taken views that are consistent with a far-right agenda.

"We know even less about Harriet Miers than we did about John Roberts and because this is the critical swing seat on the court, Americans will need to know a lot more about (her) judicial philosophy and legal background before any vote for confirmation," said New York Sen. Chuck Schumer, a prominent liberal.

Bush had originally nominated Roberts to O'Connor's seat after she announced her resignation last summer. But following the death of Chief Justice William Rehnquist last month, the president decided instead that Roberts should become chief justice.

Unlike O'Connor, who was frequently the "swing vote" between four justices with generally moderate or mainstream views, Rehnquist, who joined the Court in 1971, ordinarily voted with the other right-wing justices. His closest allies were Clarence Thomas and Antonin Scalia, the two most extreme jurists whom Bush had cited as those most compatible with his own philosophy when he ran for president in 2001.

By replacing Rehnquist, for whom Roberts had clerked early in his law career and with whom he was philosophically compatible, with Roberts, Bush was not effectively tilting the ideological balance on the Court. But because O'Connor's vote has so often been decisive in determining how the Court has ruled, her replacement is seen as potentially far more significant.

Among the recent decisions on which O'Connor cast the deciding vote are cases that affirmed the rights of minorities or women to equal treatment and affirmative action, and of immigrants and the indigent to obtain judicial review; the ability of the federal environment agency to act when its state counterpart fails to do so; the constitutionality of political-campaign finance reforms; and the separation of church and state by ruling government-sponsored prayer unconstitutional.

The far right -- or Bush's core constituency -- had been hoping that the president would pick someone in the ideological mold of Thomas or Scalia as he had pledged to do in 2001.

They campaigned actively against Attorney-General Alberto Gonzales, precisely because they believed he was not sufficiently committed to their basic beliefs, particularly on the question of abortion, the right to which Gonzales had upheld in a decision when he served on the Texas Supreme Court.

Miers' views on abortion and other critical "litmus tests" of the far right are unknown, primarily because she has never offered them publicly either as a judge, a politician, or as someone who actively participated in political debates. Despite a legal career that dates back to her 1970 graduation from Southern Methodist University Law School -- she is now 60 years old -- her "paper trail," as it is called here, is negligible.

Aside from her close association with Bush since the early 1990s, her legal career path does not suggest a right-wing ideologue. As Bush noted in introducing her during a morning press conference, she has been something of a "trail-blazer" in the Texas legal fraternity, having been elected as the first female president of the Dallas and Texas bar associations.

She became the first woman hired at one of Dallas' most important law firms, of which she later became the first female president. In 1989, she was elected to a two-year term to the Dallas City Council.

She also represented the Texas State Bar at the American Bar Association (ABA). In that capacity, she led the fight in the early 1990s against the ABA taking a position affirming abortion rights for women, arguing that it was inappropriate for the bar to take a formal position on such a controversial issue.

Her association with Bush dates back to 1994 when she served as general counsel for his transition team after his election as Texas governor and subsequently as chair of the scandal-ridden Texas Lottery Commission. Her six years of service there was depicted as double-edge by right-wingers Monday -- on the one hand, she cleaned it up; on the other hand, the lottery itself encourages gambling.

When Bush was elected president in 2001, she was appointed as staff secretary and was then promoted to deputy chief of staff in 2003 and White House Counsel last February after Gonzales was confirmed as attorney-general.

As counsel, Miers reportedly played a key role in the nomination of Roberts, who eventually gained the support of about half of the Democrats in the Senate, in part by reassuring them that he regarded Roe v. Wade, the landmark 1973 case that included a woman's right to abort a fetus in the first three months of pregnancy as part of a constitutionally recognized "right of privacy," as "precedent."

The White House appeared to be trying to reassure their right-wing supporters that Bush would not nominate anyone who was not in sync with his own views, and Miers herself stressed her responsibility, if confirmed, to "strictly apply the law and the Constitution," code words for right-wing, if not conservative, sympathies.

Reaction from the right was mixed, with Bush supporters arguing that, in the words, of Jan LaRue of the Concerned Women for America, Bush should be given "the benefit of the doubt."

Like Kristol, however, other right-wingers saw the nomination as a sign of weakness.

"Choosing a stealth candidate is a sign that the president wants to avoid a fight, either because he is in a relatively weak position, because he fears that his supporters disagree among themselves, or because he would rather expend his energies and influence elsewhere." wrote Jack Balkin, who teaches Constitutional Law at Yale Law School, on a popular blog. "All three of these seem to be the case right now."