Republican litmus test

Senate Judiciary Committee members may have described Supreme Court nominee Harriet Miers’ questionnaire responses as “incomplete to insulting.” But one item from the background information released to the committee was revealing: the disclosure that she favored a constitutional amendment that would ban abortion during her 1989 campaign for Dallas City Council. Given that she took this position on a candidates’ survey for Texans United for Life, perhaps it was an example of Miers telling people on both sides of the issue what they wanted to hear. But the combination of her survey responses, pro-life financial contributions and stand against an American Bar Association endorsement of Roe v. Wade—along with a fair amount of anecdotal evidence—strongly suggests that Miers is pro-life.

Miers’ overall judicial philosophy still matters more than certainty about her personal abortion views. That she believes abortion is wrong or even that it should be illegal tells us nothing about whether she would be bound by stare decisis on Roe. We who are pro-life abhor the policy of abortion of demand Roe imposed on our country. But the 1973 decision has also long been recognized as a good test of how an aspiring jurist sees the role of the courts. More than any other Supreme Court ruling, Roe is symbolic of judicial arrogance, black-robed social engineering and a determination to evade the original public understanding of the Constitution.

Miers and the White House are also in a precarious position in the Senate. Democrats—and some pro-choice Republicans like Judiciary Committee Chairman Arlen Specter—are likely to push Miers to either disavow her 1989 abortion views or distinguish them from how she would rule as a justice. But anything she says that might reassure these senators has the potential to erode her already tenuous support from Senate conservatives. The hearings could become all abortion, all the time.

Miers concerning abortion

Supreme Court nominee Harriet Miers said she would support a constitutional amendment to ban abortion, except when necessary to save a mother's life, and would use her influence as an elected official to "promote the pro-life cause," according to a 1989 questionnaire she provided Tuesday to the Senate Judiciary Committee.

The revelation is certain to make Miers' personal views on abortion a central issue in confirmation hearings and could plunge the White House into the kind of battle it believed it was avoiding with her nomination. Miers, the longtime Bush adviser and White House counsel, was thought to lack the kind of paper trail of other possible nominees, and because of that there were expectations that her nomination would provoke less of a fight.

But Tuesday's disclosure could produce an unusual alliance of conservatives and liberals against Miers.

Since President Bush announced her nomination two weeks ago to replace retiring Justice Sandra Day O'Connor, conservative lawyers and commentators have been harshly critical, contending Miers lacked the intellectual heft and experience to be the 110th justice in the nation's history. Democrats have largely kept silent, letting conservatives slug it out. But several Democrats and women's groups voiced immediate dismay at Miers' anti-abortion views spelled out in the questionnaire she filled out as she campaigned in 1989 for the Dallas City Council.

The release of the questionnaire came as the White House was seeking to move away from talk about Miers' personal views and repackage her as an accomplished lawyer and adviser who would bring a nonjudge's perspective to the high court. In the days after her nomination, the White House had sought to shore up support from social conservatives by stressing her religious views - a move that only deepened hostility among conservatives troubled by her lack of a judicial record.

Sen. Dianne Feinstein, D-Calif., who voted against Chief Justice John G. Roberts Jr.'s nomination because she was unsure about his views on Roe vs. Wade, said Miers' answers "clearly reflect" that she opposes the landmark 1973 decision that guaranteed a woman's right to abortion.

"This raises very serious concerns about her ability to fairly apply the law without bias in this regard," said Feinstein, a member of the Senate Judiciary Committee. "It will be my intention to question her very carefully about these issues."

Roberts did not disclose his personal views on abortion. He declined, as had previous Supreme Court nominees, to discuss his views on Roe, because the issue could again come before the court. But the issue of abortion nonetheless dominated his hearings.

With the Miers nomination, the stakes are seemingly higher. She would replace the moderate O'Connor, who has provided the critical fifth vote opposing abortion regulations, including attempts to ban a procedure that opponents call "partial-birth" abortion.

White House spokesman Scott McClellan said Bush and others involved in vetting Miers were aware of the general nature of her responses to the questionnaire given to her by Texans United for Life, which she filled out during her successful campaign for the Dallas council seat. But McClellan said White House lawyers had not seen the document until Miers went to Texas last week "to pull together various documents" for a lengthy separate questionnaire from the Judiciary Committee.

In the 1989 document, Miers pledged to oppose abortion and refuse endorsements from groups that support abortion rights. She also said she would vote against "appointment of pro-abortion persons" to city boards or committees that dealt with health issues "to the extent pro-life views are relevant."

Women's groups called Miers' views "draconian" and said they were cause for grave concern. Karen Pearl, interim president of Planned Parenthood Federation of America, said, "Americans ought to be alarmed."

On Capitol Hill, most Republican senators declined to comment, saying they hadn't seen the 1989 questionnaire. But thus far, her nomination has received a lukewarm response from Republican senators who would ordinarily be predisposed to support Bush's choice for the Supreme Court.

With the GOP holding 55 seats in the Senate, most Republicans said they expected Miers to be confirmed. But they said the confirmation hearings would take on greater significance as senators try to gain a better understanding of the nominee and her views.

"The Miers nomination is a challenge in that people are asking so many questions and the answers aren't there - yet," said Senate Majority Leader Bill Frist, R-Tenn., who promised that the Senate would act on the nomination by Thanksgiving.

Even those Republican senators who have greeted Miers' nomination with tepid support indicated they still have serious reservations. Sen. Jeff Sessions, R-Ala., said people are nervous because there is so much uncertainty about Miers.

"There's a legitimate concern among those who have really cared about the judiciary that she does not have a sufficient and well-formed philosophy of adjudication," said Sessions, a member of the Judiciary Committee.

Seeking to bolster support for Miers, the White House has coordinated speeches by Texas lawyers and judges on the state's supreme court. Tuesday afternoon, U.S. Attorney General Alberto Gonzales, a Texan, defended her qualifications to a group of law students at George Mason University in Virginia and said he did not believe she would withdraw her nomination, as some conservatives have urged.

Miers offered her most detailed public explanation of her legal views in her Senate Judiciary Committee questionnaire, which was also released Tuesday. She outlined a conservative judicial philosophy that courts have a limited role and that judges should exercise "humility" and "self-restraint." Those are principles Roberts explained in his testimony last month.

"Parties should not be able to establish social policy through court action, having failed to persuade the legislative branch or the executive branch of the wisdom and correctness of their preferred course," Miers wrote. "Courts are to be arbiters of disputes, not policy makers."

Miers' responses to the committee's questionnaire also suggest her nomination came about suddenly. She declined to be considered for O'Connor's seat when the justice announced her retirement in late June, and instead "participated in all interviews that ultimately resulted" in Bush's nomination of Roberts. But when Chief Justice William Rehnquist died - and Bush tapped Roberts for that post instead - Miers had a change of heart.

After Rehnquist's death, she participated in discussions about possible nominees for the second vacancy, but, she said, "at some point I understand that individuals at the White House began considering me as a potential nominee without advising me."

She said she spoke with Deputy White House Counsel William Kelley, Chief of Staff Andrew Card and Bush in the two weeks leading up to her nomination. She met with Bush four times, including the day Roberts was sworn in as chief justice in a formal White House ceremony.

Three days later, at a private dinner arranged by Card with Bush and first lady Laura Bush, the president offered Miers the nomination. He announced it the next morning, hours before Roberts took his seat as chief justice for the first time.

Hearing dates within sight

Senators hope to begin confirmation hearings on Supreme Court nominee Harriet Miers the week of November 7. Officials in both parties said Republicans have proposed a schedule for Miers' confirmation process that calls for a vote in the full Senate before Thanksgiving. It was not clear whether Democrats would agree or seek changes.

The two parties haggled at length earlier this year over a confirmation timetable for John Roberts, eventually confirmed as chief justice. Miers arranged personal meetings during the day with Democratic Senator Chuck Schumer of New York and Dianne Feinstein of California. Both are members of the Judiciary Committee, which will hold hearings and take the first vote on the nomination.

Some conservatives criticized Bush for picking his White House counsel, a woman with no judicial experience, rather than a well-known jurist with clearly defined views on abortion and other issues, who could herald a change in direction at the court. But even that argument does not make sense. If a change is needed in the court, why not appoint a regular person, instead of an elitist.

Harriet Miers is a uniquely qualified person to serve on the bench. She is smart, she is capable, she is a pioneer, the president said after meeting with the Texas judges. She's been consistently ranked as one of the top 50 women lawyers in the United States. She has been a leader in the legal profession. She's impressed these folks. They know her well. They know that she'll bring excellence to the bench. Despite the conservative criticism, none of the Senate's 55 Republicans has yet to announce opposition to the appointment.

Harriet Miers Unplugged

For all that talk about Harriet Miers' being a paper-pushing idolizer of the president, acquaintances say there is another side to her. The Supreme Court nominee is a tough, ambitious lawyer who willingly used her spurs in cowboy country, a competitor who clawed her way to Texas' legal pinnacle and a behind-the-scenes player who held her own and then some in the White House's West Wing, they say. Observations, testimonials and tidbits from friends and former colleagues have put Miers' life in sharper focus and shaped the debate over whether the 60-year-old White House counsel can survive the conservative maelstrom over her nomination.

The Dallas City Council was her lone elective office. That run, however, paled in comparison with hard-nosed campaigns for president of the Dallas Bar Association and the State Bar of Texas, which required strong political skills. Miers was the first female president of both groups. Miers, one of 12 women in her Southern Methodist University Law School class, has a track record of surmounting challenges and stiff opposition. She was the first woman hired by her Dallas law firm, in 1972, and the first female president of Locke, Purnell, Rain & Harrell.

Miers developed a reputation as a meticulous, persistent inquisitor and worked for clients such as Microsoft Corp. and Walt Disney Co. Some critics have complained about a singular focus on dotting I's and crossing T's at the expense of the big picture. Miers' acquaintance with Bush, whom she met in the 1990s, led to a professional relationship marked by unwavering loyalty since Bush was Texas governor.

When the newly elected president needed a White House staff secretary in 2001, he turned to the person he had relied upon as a candidate to research any weaknesses that could be exploited by his opponents. She later served as deputy chief of staff for policy and now, counsel. She was in charge of the White House selection of a chief justice nominee, vetting candidates' records and often playing the tough questioner. Conservative columnists are clamoring for Miers to withdraw her nomination, citing her lack of a judicial record while internet blogs are cattily complaining about her hair style and use of black eyeliner.

The legal profession became her life. She never married, and frequently travels from Washington to Dallas to be with her ailing mother, Sally, 91, who is in a nursing home. Like the president, she has a brother named Jeb - one of three brothers along with seven nieces and nephews. A sister, Catherine, died in 2003. Years ago, concern about his sister's living alone in Dallas prompted one brother to buy Miers a .45 caliber Smith & Wesson. Texas Supreme Court Judge Nathan Hecht, a friend, said Miers kept the gun is a lousy shot.

Views on various issues

•ABORTION

While president of the Texas Bar Association, Miers joined a debate in the early 1990s within the American Bar Association over whether the A.B.A. should take a stand on abortion. The group had gone from neutral to pro-choice and back again. Miers, joined by other Southern state bar associations, pushed the A.B.A. to remain neutral, but she never stated her underlying position on abortion.

•GAY RIGHTS

During her 1989 run for a city council seat in Dallas, Miers answered questions from a gay-rights group that was deciding whom to support in the race. Miers wasn't seeking an endorsement, but she filled out the form anyway, replying that she supported full civil rights for homosexuals and increased funding for AIDS education but opposed repealing the state's sodomy law.

•CRIME AND PUNISHMENT

The vast majority of Miers' corporate cases were resolved without litigation, so she has rarely seen the inside of a courtroom. She has expressed strong opinions, though, about the justice system, advocating the expansion of free legal aid and encouraging lawyers to do more pro bono work. In a 1993 A.B.A. Journal article, she called for more funding for the defense of death-row prisoners in Texas. Miers also served on the board of Exodus Ministries, a Christian group that helps former prisoners adjust to life outside prison.

•RELIGION

Raised a Catholic, Miers joined the Valley View Christian Church, an evangelical congregation in suburban Dallas, in 1979. Nathan Hecht, a conservative Texas judge, introduced her to the church, which is unequivocal in its opposition to abortion and homosexuality. While Miers' faith could color her approach to issues ranging from school prayer to assisted suicide, Hecht and Valley View's minister say she would not necessarily back the church's positions in her rulings from the bench.

Prejudging a person?

President Bush countered displeasure Saturday with a detailed defense of his Supreme Court nominee, saying White House counsel Harriet Miers would bring to the bench vast experience in the courtroom and at the highest levels of government.

"No Supreme Court nominee in the last 35 years has exceeded Harriet Miers' overall range of experience in courtroom litigation; service in federal, state and local government; leadership in local, state and national bar associations and pro bono and charitable activities," Bush said in his weekly radio address. "Throughout her life, Ms. Miers has excelled at everything she has done," he added.

The grumbling stems from Miers' career, which encompassed 28 years as a corporate attorney in Texas, stints as a member of the Dallas City Council and as chairwoman of the Texas Lottery Commission and, since 2001, as a top member of Bush's White House staff. None of the positions provide a public record clearly identifying her as a strong conservative is the concern.

Some worry that Miers could end up disappointing the right much like Justice David Souter, a little-known judge nominated to the court in 1990 by President George H.W. Bush who later turned out to be more liberal than expected. Other critics have expressed concern about her lack of experience grappling with constitutional reasoning.

Bush sought to give a rebuttal to the critics - offering a point-by-point recounting of her background and talents that revealed the level of concern at the White House about the conservative reaction. The president touted the "hundreds of cases in state and federal courts, from massive commercial litigation to criminal cases to civil disputes" that Miers handled as an attorney at a large Texas law firm. And he said, as White House counsel Miers addresses complex matters of constitutional law and "sensitive issues of executive-congressional relations."

Bush also spoke glowingly of a candidate outside the realm of sitting judges. Since 1933, he said, 10 of the 34 justices - such as the late Chief Justice William Rehnquist - came to the Supreme Court directly from positions in the executive branch.

"Harriet Miers will be prudent in exercising judicial power and firm in defending judicial independence," he said.