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A mysterious choice

October 04, 2005

PRESIDENT BUSH'S CHOICE of Harriet Miers, the White House counsel, to serve on the Supreme Court says a lot about the White House's current political weakness and about Bush's long-standing eagerness to reward and promote loyal members of his inner circle.

Miers has pulled a Dick Cheney. Charged with overseeing Bush's selection of a Supreme Court nominee, Miers has herself gotten the nod, much in the way Cheney became Bush's running mate in 2000 while overseeing the vice presidential search. This pattern of relying on advisors he knows and trusts was also on display with the export of several White House confidants, including Condoleezza Rice, Margaret Spellings and Alberto Gonzales, to various federal departments after Bush's reelection.

Extending the pattern to the Supreme Court, a separate branch of government, is more problematic. Is being a Bush crony Miers' chief qualification for serving on the Supreme Court?

The president's desire to replace Sandra Day O'Connor with another female justice is welcome, and Miers is undoubtedly an accomplished lawyer. But she and her White House patron will have to make the case in coming weeks that she is more than just that, because Americans want truly exceptional jurists to serve on the highest court, not merely smart loyalists to the president.

Miers, whose association with Bush dates back to Texas, was a partner at a major Dallas law firm and the first female president of the Texas Bar Assn. Much will be made of a move she supported at the time to have the American Bar Assn. drop its support of abortion rights. Miers also served on the Dallas City Council, and she was chosen by then-Gov. Bush in 1995 to lead the Texas Lottery Commission. She later followed Bush to Washington, serving in various positions in the White House.

Miers is the first nominee to the court to lack judicial experience since William Rehnquist in 1971. Choosing a non-judge is not necessarily wrong, but it should be done only for someone truly extraordinary -- a leading scholar, say, or a thoughtful senator. It isn't clear that Miers meets this standard, and plenty of accomplished judges share her set of life experiences (that is, practicing business law and working in the White House). John Roberts, for one.

A weakened White House clearly sees Miers as a safe choice. Yet it's unclear whether her nomination will improve the president's political position, even among his allies. Her lack of credentials has already caused anxiety among some social conservatives, who are bemoaning the president's failure to fulfill his promise to nominate a committed ideologue like Antonin Scalia or Clarence Thomas.

Much remains to be learned about Miers' views on the Constitution. The White House may see Miers' lack of a paper trail as an asset, but that could change if too many questions are asked about why she lacks a paper trail in the first place.

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