Bush Choice Gets Criticisms Rare for Nominees to Court - New York Times

Bush Choice Gets Criticisms Rare for Nominees to Court - New York TimesOctober 24, 2005
Bush Choice Gets Criticisms Rare for Nominees to Court
By DAVID D. KIRKPATRICK

WASHINGTON, Oct. 23 - On Oct. 22, 1971, President Richard M. Nixon nominated to the Supreme Court a corporate lawyer and former bar association president with no judicial experience. On Dec. 6, his choice, Lewis F. Powell Jr., was confirmed with fanfare by a vote of 89 to 1.

Harriet E. Miers, President Bush's nominee to succeed Justice Sandra Day O'Connor, brings a similar résumé, along with five years in the White House and one year as its counsel. But in just three weeks, her nomination has provoked a range of opposition that some scholars say may have no modern precedent.

"I would be very hard pressed to think of a good historical analogy," Richard Baker, the Senate historian, said. "I don't think there is one."

Though past nominees have faced swift opposition, what makes Ms. Miers's nomination extraordinary, historians say, is the combination of doubts about her philosophy from within the president's own party and attacks on her legal qualifications from both sides of the aisle.

"Harriet Miers is in a real danger zone," said Lee Epstein, a political scientist at Washington University in St. Louis who uses statistical models to study public perceptions of past Supreme Court nominees. "Our models right now are showing that she would get confirmed, but I would be worried if I was the president," she said. The early calls for withdrawal, the "intraparty attacks" and the questions about her qualifications, Ms. Epstein said, are what make Ms. Miers's nomination "reasonably unique."

Speaking on NBC's "Meet the Press" on Sunday, Senator Charles E. Schumer, a New York Democrat on the Judiciary Committee, said, "I think if you were to hold the vote today, she would not get a majority either in the Judiciary Committee or on the floor."

"The hearings are going to be make or break for Harriet Miers in a way that they have not been for any other nominee," Mr. Schumer said, adding, "Right now, she has a rough row to hoe."

Senator John Cornyn, a Texas Republican on the committee and a close ally of the president, responded in a statement, "No senator can speak for the entire Senate." Mr. Cornyn added, "Even if you believe his characterization, and I don't, she should be given the opportunity to appear before the committee."

The criticism of Ms. Miers may, in part, reflect changes in public expectations. Justice Powell and Chief Justice William H. Rehnquist, named the same year, were the last nominees who did not have judicial experience. Ms. Miers's meetings with senators have also been marred by misunderstandings, including one with Senator Arlen Specter, a Pennsylvania Republican and chairman of the Judiciary Committee, over her views on privacy rights. Some of her backers have also suggested an element of sexism in her treatment.

And the debate comes at a moment when social conservatives feel that their electoral victories entitle them to a change in the court.

Alan Simpson, a former Republican senator from Wyoming, said that the reaction was like "a triple root canal" but added: "It really isn't Harriet in my mind. It is the president." Mr. Simpson blamed a sense of weakness around the White House because of concerns about the C.I.A. leak investigation, the war in Iraq and the handling of the recent hurricanes. "It is like a huge raptor seeing a rabbit running on only three legs," he said.

Some supporters of the nomination say that they are beginning to turn it around, partly by enlisting lawyers and judges who know Ms. Miers to attest to her abilities. "I think we hit our stride this week," said Jay Sekulow, chief counsel for the conservative American Center for Law and Justice.

But the dual opposition is creating some strange bedfellows.

Last week, Mr. Specter joined Senator Patrick J. Leahy of Vermont, the ranking Democrat on the Judiciary Committee, in criticizing Ms. Miers as failing to answer adequately a Senate questionnaire - a move Mr. Leahy later called "unprecedented." The two senators sent her a letter demanding that by Wednesday of this week she provide documents from her White House work as well as information about what her friends and colleagues have told conservatives on her behalf.

Two other Republicans on the committee, Senator Sam Brownback of Kansas and Senator Lindsey Graham of South Carolina, are also supporting the request. "We need to have that full picture before we can vote," Mr. Brownback said on "Fox News Sunday." Being asked to provide this type of information "is almost a risk they assume when you nominate a candidate that's from inside the White House," he said.

But Mr. Cornyn said on Friday that the administration should reject that request because disclosing internal discussions would violate the confidentiality of White House deliberations.

"I expect them to stand on that principle again, no matter who asked for them," Mr. Cornyn said.

Ms. Miers is not the first nominee to confront ideological opposition from within her own party. Republicans objected so much to President Ulysses S. Grant's 1874 nomination of Caleb Cushing, a former attorney general and a respected lawyer, that it was withdrawn after four days, said Professor Richard D. Friedman of the University of Michigan Law School. Republicans also complained about President Herbert Hoover's 1932 nomination of the eminent jurist Benjamin Cardozo. Others choices for the court - President Franklin Roosevelt's 1937 nomination of Justice Hugo Black, a former senator who never finished high school, or Mr. Nixon's 1970 nomination of G. Harrold Carswell - have faced doubts about their qualifications.

But several historians said that they could not think of a nominee who had drawn so much criticism from both parties so quickly. "I have to sympathize with this woman," said Sheldon Goldman of the University of Massachusetts, noting the similarity with Justice Powell's résumé.

"The difference in treatment that she has received has been absolutely stunning," Mr. Goldman said.