Overlooking the Key Question for Miers

In the midst of the rebellion against Harriet Miers last week -- a rebellion led by conservative activists and journalists -- little attention was paid to an issue that should be at the forefront of the debate over her nomination to the Supreme Court.

This is not about Miers' constitutional law credentials or the likelihood of her overturning landmark decisions such as Roe v. Wade. The issue is independence.

Given the nature of her current position, her relationship with this president and her political background, could she be (and be seen to be) her own woman? Would she be able to separate herself from the inner circle of White House thinking and decision making should she be confirmed to the high court? Or would she act as a kind of extension of that circle into the separate power center of the court?

This is not just a matter of recusing herself from hearing cases that arise from decisions she herself took part in while White House counsel (or in earlier executive posts). This is the far broader question regarding Miers' likely function on the court, and the desirability of allowing a president to install on the court a trusted confidante who will not likely forget the man who raised her to the most prestigious legal distinction in the land. Nor is she likely to be unfamiliar with his preferences on a wide range of legal issues.

Nor is this simply another way of objecting to cronyism, the practice of rewarding one's friends and political loyalists with desirable positions. Choosing less credentialed individuals for prestigious posts on the basis of their past political service is a vice to which all presidents have been susceptible, in varying degrees, although less often when naming Supreme Court justices.

Cronyism is mostly an epithet for the moment of appointment. It's the attack word of choice for those who resent seeing politics take its natural course when it means someone they find less than ideal winds up with a plum. In this case, cronyism came up immediately because its role in Miers' selection was so obvious. With a chance to pick any champion of conservative jurisprudence in the land, President Bush named instead the in-house lawyer who helped him handle sensitive legal matters back in Texas.

But the cronyism that gets a person a job is just half the story. The other half unfolds when the person named to the job in question gets an opportunity to express gratitude. It may be obvious or not so obvious, but the chance to say thanks is going to come -- and probably come often.

In fact, one could argue that a president appointing his White House counsel and longtime associate in this manner is hoping to establish a kind of beachhead within the judicial branch of government -- or at the very least a communications center. If she chooses, Miers could become the president's eyes and ears on the court, as well as an advocate for his views in general. She could do all this without violating the letter of her commission, although the spirit of the separation of powers might be another matter.

President Lyndon B. Johnson, never one to shrink from an opportunity to manipulate a part of the government, put his longtime legal adviser and high-level fixer, Abe Fortas, on the Supreme Court in 1965. Supreme Court Justice William O. Douglas had urged Johnson to put Fortas on the court, arguing that the liberal wing needed another strong mind and voice in the court's deliberations. In a letter cited by historian Robert Dallek in his Johnson biography (Flawed Giant), Douglas said he knew how much the president relied on Fortas, but assured him that Fortas could "serve you and his country too."

There were those in Congress who worried about Fortas, both for his liberal views and for his potential as a Johnson agent on the court. Would he be serving the judicial branch or the chief executive? Would he be the White House man, the eyes and ears of LBJ? These were good questions, but it was 1965, the year Johnson got nearly everything he wanted from a Congress heavily loaded with Democrats who had benefited from his landslide in 1964.

Fortas was confirmed, but when LBJ tried to elevate him to chief justice in 1968 (replacing Earl Warren), the Senate balked. Conservative Southern Democrats had never been entirely comfortable with Fortas, and they made common cause with Republicans who had never liked him at all. Denied the top job, Fortas was forced off the court subsequently because of outside earnings he received in violation of court rules.

Miers would not likely be as formidable, or as vulnerable, as Fortas proved to be. But she is surely as loyal to Bush as Fortas was to his Prince -- and more so, if it comes to that. At the very least, the perception of her special relationship to the White House would be impossible to dismiss.

At some point in the hearings process, this objection to Miers should ascend to a higher priority than it has been given to date. But so far at least it has been hard to compete with the roar of disapproval coming from those movement conservatives disappointed in the Miers pick. They had thought that O'Connor's retirement would ring in a new era on the Court, one in which arch-conservative Antonin Scalia would be joined by another like-minded powerhouse who would help him tip the balance of legal reasoning on the Court. Instead, President Bush is asking them to be satisfied with a lower profile justice who will probably at least vote with Scalia most of the time.

For some conservatives, that additional vote is enough. It could be a fifth vote to overturn Roe v. Wade and get the court back on the side of traditional marriage and religion in the public sphere.

But for others, the sight of so many more appropriate standard bearers -- including at least a few who are women or members of minority groups -- renders the Miers selection look galling, small-minded and personal.

The president chose to expose himself to this criticism. He clearly believed it would be short-lived, centered in a few salons and on a few editorial columns of newspapers and magazines. Underestimating the magnitude and staying power of the anti-Miers sentiments was surely one of the worst miscalculations of this presidency -- and surely the one that's hardest to understand.

All in all, however, presidents who make such miscalculations often have the opportunity to drive those decisions home -- wanted or not. So it is with the current conundrum. While few in the conservative movement have truly embraced Miers, she will most surely remain the choice of the president. And the Senate may well confirm her, absent a well-organized resistance among Republicans.

It's going to take some other issue or incident from her past, emerging at this 11th hour, to deny Miers confirmation. Unless she decides to take herself out of the game, she's still likely to emerge as a winner.

Whether the president does the same is an entirely different question.