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The Nominee You Know

Bush wanted to be sure that his pick would be conservative now and 20
years from now.

12:00 PM, Oct 3, 2005 • By FRED BARNES
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IF ALL GOES WELL, Harriet Miers will turn out to be a less impressive version of John Roberts: that is, a judicial conservative, or constitutionalist, who will cause the ideological balance on the Supreme Court to shift to the right. She's not likely to have Roberts's gift for describing and defending a conservative judicial philosophy, dodging questions on current issues, and toying with frustrated Democrats. All she needs to do is come off as a credible mainstream conservative, avoid the questions that Democrats will try to trick her on, and persuade senators she's not merely a Bush crony. That accomplished, she should be confirmed.

She'd better be able to do this. If she can't--if she's not really a conservative--the political effect will be to shatter President Bush's still-strong relationship with his base. The love affair will be over. The president will have dashed the hopes cherished by conservatives for a conservative Supreme Court. And he will be far weaker as a national political leader as a result.

Here's what people at the White House told me after Bush announced to nearly everyone's surprise that Miers, 60, now the chief White House legal counsel, was his pick to replace Sandra Day O'Connor: After running the judicial selection process along with Karl Rove--the process that led to the Roberts nomination--she had become a candidate for the high court herself.

The president and others at the White House have had long discussions with her about judges. She and Rove were involved in questioning at least five candidates for the court vacancy Roberts has filled. From those talks over the months, I'm told, it became clear to Bush that she had exactly the philosophy of judicial restraint he favors and that she wouldn't "grow" as a justice and turn into a swing vote or a liberal.

Also, I'm told, the president is fully aware of the stakes in this nomination. Roberts's replacement of William Rehnquist as chief justice was simply a conservative replacing a conservative. But Miers would succeed a swing justice. With her, I'm told further, Bush believes he would be altering the ideological makeup of the court, moving it to the right.

The question is: why pick Miers and not someone with a judicial record as a conservative? Bush had before him a list of roughly two dozen potential nominees with unassailable qualifications and clear conservative leanings on judicial matters. He'd already interviewed at least four of them. Any of them would be likely to win confirmation. No president whose party controls the Senate has lost a Court nomination fight since 1968. And that year, President Lyndon Johnson's selection of his buddy Abe Fortas came late in the term. That made it easy for Republicans to delay and ultimately kill the Fortas nomination.



So why did Bush choose Miers? For him, these nominations are quite personal. He wants to feel comfortable with his nominee, confident his pick will be a conservative now and conservative 20 years from now. Bush picked Roberts after being impressed while interviewing him. His doubts were erased (and there were initial doubts about Roberts). My guess is with Miers his doubts were washed away too.



Conservatives shouldn't throw up their hands in despair, at least yet. They should wait until they hear from Miers as a witness before the Senate Judiciary Committee. It's then that we'll begin to find out if Bush was correct in his view that she's the person to fulfill the dreams of so many conservatives and finally shove the Supreme Court to the right.



Fred Barnes is executive editor of The Weekly Standard.