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Miers: Bush Gets the Fight He Wants

In September, Washington's political cultures prepared for combat over President Bush's next choice for the Supreme Court. Everyone knew that this nominee would succeed Sandra Day O'Connor, the pivotal vote on a 5-4 court, and thereby alter the balance. All-out war seemed all but inevitable.

Brushing off calls for a compromise candidate, the famously pugilistic Pat Buchanan said Republicans could actually reunite and re-energize their ranks with a "bench clearing brawl" against the liberals. It would be a good fight, he said, with the country on the side of the conservatives.

Then the president announced his choice — White House Counsel Harriet Miers — and sure enough, the brawl began. But lo and behold, everybody in the fray seemed to have come from the same side of the field. Republicans and conservatives were slugging it out, pro and con, while everyone to their left seemed to be sitting back and watching. The dominant attitude among Senate Democrats was equal parts amazement and relief.

Shortly after Miers' name emerged, Bush loyalists like Sen. John Cornyn (R-TX) went public to praise the nominee as "superb." But within an hour, conservative Web sites were protesting in tones somewhere between wounded and distraught. Similar cries arose from activist groups recently organized for the express purpose of lobbying for Mr. Bush's court nominees.

William Kristol, publisher of The Weekly Standard and venerable spokesman for movement conservatism, pronounced himself "disappointed, depressed and demoralized." Why Miers, an unknown quantity, when there were a dozen or more jurists around the country with more public commitments to the cause of judicial conservatism?

The president had a long list of men and women, diverse by race and age and geography, who were acolytes of Justices Antonin Scalia and Clarence Thomas. Yet he chose someone from within the inner White House circle whose views on the classic constitutional questions are not a matter of public record.

Rush Limbaugh, the rightwing radio icon, got Vice President Cheney on his show right away and gave him no quarter.

"Is there a reason why conservatives, known quantities about whom the President's supporters wouldn't have questions, were not chosen: Michael Luttig, Edith Jones, and others?" Limbaugh asked.

The vice president said it was not a negative reflection on anyone, just a preference for the experiences Miers had to offer. "And I think you'll find," the vice president, "when you look back 10 years from now that it will have been a great appointment."

"Well, that's what everybody is hoping," Limbaugh snapped back. "But the question is why do we need to wait 10 years? There are people that he could have nominated that we would know that about now. Is there a desire in the White House because of current poll numbers, or this Katrina response that just doesn't want the fight with the Senate Democrats at this time?"

Cheney assured Limbaugh's listeners that the administration feared no man — or woman — in the Senate, regardless of party. And he insisted that knowing Harriet Miers for five years was all the examination he needed to be sure of her bona fides. Trust me, he added.

We will soon be hearing that old Russian adage that Ronald Reagan loved to quote: "Trust, but verify." Miers will be subjected to a grueling round of interrogations in her private meetings with senators, to be followed by days of public grilling before the Senate Judiciary Committee.

Surviving this will not be easy. Unlike John Roberts, the newly invested Chief Justice of the United States, Miers has not made a profession of constitutional law and its voluminous lore. And anyone would be hard-pressed to duplicate his performance in parrying the committee's questions.

Still, the real problem for Miers will be the complexity of the crossfire.

Roberts knew he would be questioned by both sides, but he also knew that only the Democrats were a realistic threat to oppose his confirmation. Miers at this point has no such assurance. Sen. Sam Brownback (R-KS) was one member of the Senate Judiciary Comitttee who set a clear standard for the next nominee. He said it should be someone openly pledged to rolling back what he regards as the judicial excesses of the last 40 years, notably Roe v. Wade and various restrictions on religion in the public sphere. And he had immediate support from the likes of Republicans Tom Coburn of Oklahoma and Lindsey Graham of South Carolina.

Social conservatives in the Senate are not likely to make common cause with liberals in opposing Miers, at least not in sufficient numbers to endanger her confirmation. Several key Democrats made friendly noises the day she was announced, while loyalty to Bush will bring most of the GOP to heel as well. White House calculations are that Miers will have the votes, even if she has to endure some discomfiting days in the hearings.

Ultimately, that calculus may have been the final factor in the president's selection process. He knows his autumn agenda is already fraught with divisive issues that will strain his coalitions in the House and Senate, as well as in the country. While his own job approval polls are better this week than last, the latest Newsweek poll has 62 percent disapproving of his handling of the war in Iraq. That's a record.

So this administration does not need or want a donnybrook over a judicial nomination — even a Supreme Court vacancy — no matter how much Pat Buchanan would like one.

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