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Published: Sunday, 10/9/2005

Choice of Miers a gamble for us all

WASHINGTON - That loud hiss we're hearing is the sigh of puzzlement that has greeted President Bush's nomination of his crony, er, buddy Harriet Miers to replace Sandra Day O'Connor on the Supreme Court.

Like Justice O'Connor, Ms. Miers is a woman from the Southwest. Like Justice O'Connor, she was once an elected official and is a diligent, conscientious overachiever, but not a brilliant legal scholar. Like Justice O'Connor, she's athletic. Like Justice O'Connor, she is warm and empathetic.

Unlike Justice O'Connor, she's never been married or had children, although she's dated a conservative judge on the Texas Supreme Court for years. Unlike Justice O'Connor, she has never been a judge. Unlike Justice O'Connor, who had met President Ronald Reagan only briefly before he nominated her, Ms. Miers is totally, selflessly, personally, and joyfully loyal to the President, as is nearly everyone who works for him.

As Justice O'Connor was when picked in 1981, Ms. Miers is a virtual unknown.

In a Rose Garden reverie, Mr. Bush said that conservatives should be happy with his choice because he's a conservative, knows Ms. Miers well, and is certain she won't go to the Supreme Court and morph into a liberal.

The tight bond between the President and his lawyer doesn't mean she would be a bad justice. But judges should be unfailingly independent and judge each case on its merits while applying wisdom, caution tempered with compassion, and an abiding love and unswerving respect for justice. Ms. Miers' fierce loyalty to a sitting, highly partisan president makes many uneasy, especially because she's never proved herself as a judge.

There is no facet of life untouched by the Supreme Court - birth, death, how and when we have sex, how and when we pray, what we are permitted do with our property and our children, what the government may do to us, who leads us, and how they do it.

As every president who is privileged to nominate a justice knows, there are inevitable surprises and disappointments. No conservative worth his subscription to National Review will mention the name "David Souter" without a shudder. Named by President George H.W. Bush, Justice Souter is an independent thinker, a/k/a a "liberal."

It was also that President Bush who said, to the whole world, that Clarence Thomas was the best person he could find to do the job. And now this President Bush is saying that Ms. Miers is the best person in the entire country for the job. (Oct. 4: "Mr. President, of all of the people in the United States you had to choose from, is Harriet Miers the most qualified to serve on the Supreme Court?" Bush: "Yes. Otherwise I wouldn't have put her on I picked the best person I could find.")

That is absolute nonsense, unless he walked into the Oval Office, remembered he had to select a new justice and she was the only person he saw. Mr. Bush noted proudly that Ms. Miers was named one of America's top 100 lawyers. So was Hillary Rodham Clinton.

Ms. Miers is a competent, intelligent, efficient, partisan lawyer (despite giving money to both Democratic and Republican candidates, as many lawyers do). But there are far more impressive lawyers and judges, although being a lawyer is not a requirement.

Mr. Bush meant she was the best woman lawyer he could find whom he knows personally, with whom he feels comfortable, and who does not irritate him with philosophical debates. And who would not make liberal senators run screaming for their filibuster hats.

Conservatives are upset because they wanted Mr. Bush to choose someone with a known record - a star in the conservative firmament. Liberals are wary because they worry that a conservative Christian from Dallas might not believe the Constitution guarantees a right of privacy and that she is against abortion, against "death with dignity," against gay rights, against big government, and for the expansion of presidential authority.

Undoubtedly, we won't know if she is an ideologue either way unless she's confirmed. She's a seasoned litigator and knows how to charm and mollify without giving away her hand. However, her congressional hearings may be more raucous than the somewhat tedious hearings on John Roberts' nomination to be chief justice.

Justice Roberts' credentials are stellar; there was never a doubt that he would be confirmed. Ms. Miers' legal qualifications are more pedestrian, although not as "mediocre" as some are complaining.

Eventually, conservative senators are likely to give Mr. Bush and Ms. Miers the benefit of the doubt, although they won't be happy about it unless they find out she is a closet member of the National Rifle Association, a National Right to Lifer, and the ideological twin sister of Phyllis Schlafly.

Barring surprises, some Democrats also will vote for Ms. Miers, thinking, as one of the most liberal of them, Sen. Charles Schumer of New York, said, "It could have been a lot worse."

Ms. Miers once ran the Texas Lottery Commission. Her nomination to be a justice for life is a life gamble for us all.

Ann McFeatters is chief of The Blade's Washington bureau.

Contact her at:

amcfeatters@nationalpress.com



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