Make Miers pass a 'litmus test'

FOR CONSERVATIVES, the White House has chosen precisely the wrong ground on which to fight for its nomination of Harriet E. Miers to the Supreme Court. We are being asked to simply trust the president. He knows Miers. She may have never taken a public stand on any constitutional issue, but -- nudge nudge, wink wink -- she will vote to overrule Roe vs. Wade. We dare not risk a nominee with publicly expressed solidly conservative legal views. This is the best we can do.

Yet the administration's efforts to defend Miers are not just floundering, they are actually doing harm. Demoralized conservatives wonder what good is winning the battle for Miers if the price is complete surrender in the war of ideas? And experience -- in the form of Justice David Souter -- has shown that, notwithstanding insider assurances, a nominee with no public commitments will, over time, stick to exactly that same number of commitments: none.

To make matters worse, the administration has suggested to activists that Miers will prove to be conservative because she will vote either according to her religious views or her personal allegiance to President Bush. By all accounts, Miers is a pro-life Christian. And no one doubts her loyalty to Bush. But the idea that Miers would trim her decisions to fit such allegiances is one of the reasons conservatives cringe at the nomination.

For decades, conservative thinkers have criticized justices for deciding cases based on their personal desires, feelings or views on policy. Now conservatives are asked to support a nominee on the grounds that these attributes assure that Miers will "vote right." This accepts the dispiriting notion that the court is just one more political institution. Imagine the reaction if President Clinton had nominated a record-less Arkansas friend and politico, a Bruce Lindsey or a Webb Hubbell, and publicly reassured Democrats that the nominee would vote pro-abortion because of his religious views (or absence thereof) and personal relationship with the president!

The only way out of this mess is for GOP senators to ask -- and to require Miers to answer, as a condition of confirmation -- direct questions about her judicial philosophy and its application to concrete constitutional issues. Republicans should test Miers' core legal principles. And if she fails the test, or refuses to take it, they can vote against her.