A Souter in a Skirt?

If Miers changed once, how can Bush know she won't change again?

It wasn't supposed to be this way. President Bush's Supreme Court nominations were expected to trigger fierce confrontations between the Left and the Right. But John Roberts's selection as chief justice produced no fireworks. Half the Senate's Democrats voted to confirm him. A Left-Right confrontation isn't happening over Harriet Miers, either. Senate Minority Leader Harry Reid, D-Nev., praised her nomination. Democrats are mostly standing on the sidelines while Republicans fight it out. It's not Left versus Right. It's Right versus Right.

One of the reasons that many conservatives are angry is that Bush did not give them a showdown. "A whole lot of evangelical conservatives were eager for a rumble, to really fight it out with the 'devilish Dems,' " Marvin Olasky, editor of the evangelical magazine World, told The New York Times.

Control of the Supreme Court, after all, is a defining cause of the conservative movement. For some conservatives, resentment of the high court goes all the way back to the "Impeach Earl Warren" movement that sprang up in reaction to the desegregation rulings of 1950s and continues through what they see as too-liberal rulings on affirmative action, busing, women's rights, gay rights, school prayer, property rights, flag-burning, abortion rights, school vouchers, the public display of religion, and other issues.

"It's what fueled the drive to develop new voters for the GOP and push for a majority in Congress," conservative blogger Edward Morrissey wrote in The Washington Post. "Finally, the political stars have aligned—giving us a Republican White House, a solidly Republican Senate, and a Republican House to boot."

The climactic moment is reached when conservatives get their big chance to shift the Supreme Court's balance. And what does Bush do? He flinches.

Miers's views on most major issue are unknown. Roberts's views weren't known either. But her confirmation fight is going to be a lot tougher. For one thing, Miers has been named to replace Sandra Day O'Connor, the swing vote on the Court. Miers could change the Court's direction, a result that conservatives hope for and liberals fear.

Roberts's nomination was buoyed by his commanding intellectual stature. He had written extensively about constitutional issues and argued 39 cases before the Supreme Court. Conservatives who might have been skittish about Roberts's ideological reliability could not quarrel with his qualifications.

Miers does not have the same intellectual standing. In an interview on MSNBC, conservative intellectual Robert Bork, whose nomination to the Supreme Court in 1987 was rejected, called the Miers nomination "kind of a slap in the face to the conservatives who've been building up a conservative legal movement for the last 20 years." Sen. Arlen Specter, R-Pa., who will chair her confirmation hearings, told The New York Times, "She needs a crash course in constitutional law."

"It's the Souter factor," Sen. Jeff Sessions, R-Ala., told the Associated Press. He was referring to Justice David Souter, who was nominated to the Supreme Court by President George H.W. Bush in 1990. The White House assured conservatives that Souter would be "a home run." He turned out to be a bitter disappointment for them, because he ended up voting against them on key issues like abortion.

There is one big difference between Souter and Miers, however. The first President Bush barely knew Souter and relied on assurances from Souter's New Hampshire patrons, then-Sen. Warren Rudman (who supported abortion rights) and White House Chief of Staff John Sununu.

The current President Bush knows Harriet Miers well. They have worked together for more than a decade. In his October 8 radio address, Bush said, "Harriet Miers will be the type of judge I said I would nominate—a good conservative judge." Bush to conservatives: Trust me.

But many conservatives don't, at least not on Miers. Why not? Bush said at his October 4 press conference, "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." How can he know that? After all, Miers's supporters say that she changed—from Democrat to Republican—around the time of her conversion to evangelical Christianity.

That's one reason Miers's critics worry. "I think conservatives do not have confidence she has a well-formed judicial philosophy," Sessions told AP. "They are afraid she might drift and be a part of the activist group like Justice Souter has."

Her confirmation hearings will be crucial. She will have to convince her critics that she has deeply held constitutional convictions, without divulging her views on specific issues.

Sen. Sam Brownback, R-Kan., a member of the Judiciary Committee, has made himself a spokesman for the doubters. That may be very helpful to him if he decides to run for the 2008 presidential nomination.

Doesn't Bush's promise that Miers is a true conservative count for anything? "I do think she reflects the president, and I think that's the strongest thing, really, that she has going for her," Brownback said. But he added, "It would be better to ... have someone we know the record on."

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Correction: Because of a transcription error, a prescription-drug remark by Rep. Jeff Flake, R-Ariz., was attributed in my October 8 column to Rep. Jeb Hensarling, R-Texas.