The Right Sees a Strong -- and Wrong -- Signal

WASHINGTON — Bold conservative thinkers with clear public records need not apply.

An increasing number of conservative activists fear that is the message President Bush is sending with his two choices for the Supreme Court.

This week's nomination of White House Counsel Harriet E. Miers, following Bush's earlier selection of John G. Roberts Jr. as chief justice, means that the president has chosen two Supreme Court nominees with limited -- or virtually no -- public records on the key constitutional controversies dividing the parties. In the process, he's bypassed a long list of judges with consistent conservative records on state and federal courts.

"I don't know that there is a deliberate message -- I think he is just trying to avoid trouble -- but the message comes through: Do not be controversial, do not express strong opinions that arouse opposition," said Robert H. Bork, the conservative legal scholar and former federal judge. Bork's extensive writings keyed an explosive confirmation battle that culminated in his rejection by the Senate when President Reagan nominated him to the Supreme Court in 1987.

During almost five years of bruising partisan warfare on issues from taxes to Iraq, few people have ever accused Bush of dodging a fight. But that's exactly the charge he is now facing from disgruntled conservatives.

They contend that Bush has chosen Miers, and even Roberts, largely because he fears Democratic resistance to conservatives with more concrete public records, such as appellate court Judges J. Michael Luttig and Edith H. Jones.

"Is the president sending a message that these distinguished conservatives are too controversial to be nominated for the high court, even with a Senate containing 55 Republicans?" a Wall Street Journal editorial asked Tuesday.

White House officials and some Bush allies on the right deny the charge that he is gun-shy about promoting nominees with extensive public records. They note that the president has consistently appointed known conservatives, such as Janice Rogers Brown and Priscilla R. Owen, to the powerful federal appellate courts -- even renominating them after they were initially blocked by Democratic filibusters.

"In the president's mind, it is not disqualifying if you have a public track record of conservatism, and he has proved that through his appellate court appointees," said White House counselor Dan Bartlett.