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Selling Harriet Miers

October 20, 2005

IF HARRIET E. MIERS WERE A SOFT DRINK, she would be New Coke: a carefully marketed product that no one is buying. The Bush administration deserves most of the blame for this clumsy campaign, but part of the problem is the confirmation process itself.

Judicial confirmations, by custom if not design, now proceed mostly through indirection. No nominee can say what she actually thinks about anything anyone cares about, but she can make some vague comments on some general issue, and the appropriate senatorial heads will nod or shake. She can discuss the right to privacy but not Roe vs. Wade. Her judicial philosophy but not how she applies it. Her views on Italian cuisine but not on veal parmigiana.

The White House has taken this strategy to absurd levels with its promotion of Miers. At first, it touted her faith as a reason to support her. "Part of Harriet Miers' life is her religion," the president said last week. The inference that religious conservatives were meant to take away was clear: She's one of us. And the assumption behind that statement was that she opposes abortion and would vote to overturn Roe vs. Wade.

This suspicion was confirmed on Tuesday with the release of a 10-item questionnaire from a Texas antiabortion group that Miers answered while running for the Dallas City Council in 1989. In the questionnaire, she goes beyond even opposition to Roe vs. Wade, saying she supported a constitutional amendment to ban abortion except when necessary to prevent the death of the mother.

This was too candid for the White House. "The role of a judge is very different from the role of a candidate or a political officeholder," said Scott McClellan, a White House spokesman. The problem was not that Miers opposes abortion -- presumably, that's part of the reason the president nominated her -- but that she said she did. One of the tenets of marketing is that it's about how the product makes you feel, not what it actually does (or, in this case, says).

Now the White House finds itself struggling to sell its nominee to its most important target audience: the Senate Judiciary Committee. A 57-page questionnaire that Miers submitted on Tuesday (it included the one-page Texas abortion survey) satisfied neither Patrick Leahy of Vermont, the committee's ranking Democrat, nor Arlen Specter of Pennsylvania, the committee's Republican chairman. Her answers, the senators agreed, were "insufficient."

One of the areas they want to explore is how she would handle cases involving the Bush administration. Her official answer is that she would "resolve any potential conflict of interest by abiding by both the spirit and the letter of the law" -- language almost identical to that provided by now-Chief Justice John G. Roberts Jr. in his questionnaire. But Miers is counsel to the president and has been his personal lawyer. Under what circumstances would she recuse herself in cases involving his administration? The senators were right to ask her to be more specific.

Not that there's much hope for more details; White House claims of privilege preclude that, as do the rules of judicial marketing. But sometimes marketing campaigns fail. Coca-Cola reintroduced Coke Classic just a few months after it launched New Coke, which is no longer available in the United States. Does anyone in the White House drink Pepsi?

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