Bush White House crisis deepens: The contradictions of the Miers nomination

WASHINGTON — Senators from both parties said yesterday they plan to question whether White House adviser Karl Rove may have given inappropriate "back-room assurances" to secure conservative support for Supreme Court nominee Harriet Miers.

Sen. Arlen Specter, R-Pa., chairman of the Senate Judiciary Committee, said his committee "is entitled to know whatever the White House knew" regarding Miers and her views on important legal issues.

"If there are back-room assurances, and if there are back-room deals, and if there is something which bears upon a precondition as to how a nominee is going to vote, I think that's a matter that ought to be known by the Judiciary Committee and the American people," Specter said on ABC's "This Week."

Sen. Patrick Leahy of Vermont, the ranking Democrat on the committee, said he would oppose any nominee who gives assurances about how he or she would vote on particular cases.

"I would vote against that person," he said. "I wouldn't care whether they are nominated by a Democrat or a Republican ... and all 100 senators should vote against them under that basis alone."

Leahy said Miers has told him that she has given no such assurances.

The White House acknowledged Rove has been among those making calls to key conservative supporters but denied anything improper has been promised.

The issue arose from remarks made on a syndicated radio show by James Dobson, founder of the conservative advocacy group Focus on the Family. Dobson said last week that he had spoken in confidence with Rove about the Miers nomination and that their conversation convinced him to support her.

"When you know some of the things that I know, that I probably shouldn't know, you will understand why I have said ... that I believe Harriet Miers will be a good justice," Dobson said.

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In the midst of the rebellion against Harriet Miers last week -- a rebellion led by conservative activists and journalists -- little attention was paid to an issue that should be at the forefront of the debate over her nomination to the Supreme Court.

This is not about Miers' constitutional law credentials or the likelihood of her overturning landmark decisions such as Roe v. Wade. The issue is independence.

Given the nature of her current position, her relationship with this president and her political background, could she be (and be seen to be) her own woman? Would she be able to separate herself from the inner circle of White House thinking and decision making should she be confirmed to the high court? Or would she act as a kind of extension of that circle into the separate power center of the court?

This is not just a matter of recusing herself from hearing cases that arise from decisions she herself took part in while White House counsel (or in earlier executive posts). This is the far broader question regarding Miers' likely function on the court, and the desirability of allowing a president to install on the court a trusted confidante who will not likely forget the man who raised her to the most prestigious legal distinction in the land. Nor is she likely to be unfamiliar with his preferences on a wide range of legal issues.

Nor is this simply another way of objecting to cronyism, the practice of rewarding one's friends and political loyalists with desirable positions. Choosing less credentialed individuals for prestigious posts on the basis of their past political service is a vice to which all presidents have been susceptible, in varying degrees, although less often when naming Supreme Court justices.

Cronyism is mostly an epithet for the moment of appointment. It's the attack word of choice for those who resent seeing politics take its natural course when it means someone they find less than ideal winds up with a plum. In this case, cronyism came up immediately because its role in Miers' selection was so obvious. With a chance to pick any champion of conservative jurisprudence in the land, President Bush named instead the in-house lawyer who helped him handle sensitive legal matters back in Texas.

But the cronyism that gets a person a job is just half the story. The other half unfolds when the person named to the job in question gets an opportunity to express gratitude. It may be obvious or not so obvious, but the chance to say thanks is going to come -- and probably come often.

In fact, one could argue that a president appointing his White House counsel and longtime associate in this manner is hoping to establish a kind of beachhead within the judicial branch of government -- or at the very least a communications center. If she chooses, Miers could become the president's eyes and ears on the court, as well as an advocate for his views in general. She could do all this without violating the letter of her commission, although the spirit of the separation of powers might be another matter.

President Lyndon B. Johnson, never one to shrink from an opportunity to manipulate a part of the government, put his longtime legal adviser and high-level fixer, Abe Fortas, on the Supreme Court in 1965. Supreme Court Justice William O. Douglas had urged Johnson to put Fortas on the court, arguing that the liberal wing needed another strong mind and voice in the court's deliberations. In a letter cited by historian Robert Dallek in his Johnson biography (Flawed Giant), Douglas said he knew how much the president relied on Fortas, but assured him that Fortas could "serve you and his country too."

There were those in Congress who worried about Fortas, both for his liberal views and for his potential as a Johnson agent on the court. Would he be serving the judicial branch or the chief executive? Would he be the White House man, the eyes and ears of LBJ? These were good questions, but it was 1965, the year Johnson got nearly everything he wanted from a Congress heavily loaded with Democrats who had benefited from his landslide in 1964.

Fortas was confirmed, but when LBJ tried to elevate him to chief justice in 1968 (replacing Earl Warren), the Senate balked. Conservative Southern Democrats had never been entirely comfortable with Fortas, and they made common cause with Republicans who had never liked him at all. Denied the top job, Fortas was forced off the court subsequently because of outside earnings he received in violation of court rules.

Miers would not likely be as formidable, or as vulnerable, as Fortas proved to be. But she is surely as loyal to Bush as Fortas was to his Prince -- and more so, if it comes to that. At the very least, the perception of her special relationship to the White House would be impossible to dismiss.

At some point in the hearings process, this objection to Miers should ascend to a higher priority than it has been given to date. But so far at least it has been hard to compete with the roar of disapproval coming from those movement conservatives disappointed in the Myers pick. They had thought that O'Connor's retirement would ring in a new era on the Court, one in which arch-conservative Antonin Scalia would be joined by another like-minded powerhouse who would help him tip the balance of legal reasoning on the Court. Instead, President Bush is asking them to be satisfied with a lower profile justice who will probably at least vote with Scalia most of the time.

For some conservatives, that additional vote is enough. It could be a fifth vote to overturn Roe v. Wade and get the court back on the side of traditional marriage and religion in the public sphere.

But for others, the sight of so many more appropriate standard bearers -- including at least a few who are women or members of minority groups -- renders the Miers selection look galling, small-minded and personal.

The president chose to expose himself to this criticism. He clearly believed it would be short-lived, centered in a few salons and on a few editorial columns of newspapers and magazines. Underestimating the magnitude and staying power of the anti-Miers sentiments was surely one of the worst miscalculations of this presidency -- and surely the one that's hardest to understand.

All in all, however, presidents who make such miscalculations often have the opportunity to drive those decisions home -- wanted or not. So it is with the current conundrum. While few in the conservative movement have truly embraced Miers, she will most surely remain the choice of the president. And the Senate may well confirm her, absent a well-organized resistance among Republicans.

It's going to take some other issue or incident from her past, emerging at this 11th hour, to deny Miers confirmation. Unless she decides to take herself out of the game, she's still likely to emerge as a winner.

Whether the president does the same is an entirely different question.

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The media have continued to uncritically report Focus on the Family founder and chairman James C. Dobson's claim that Supreme Court nominee Harriet Miers's conservative Christian beliefs and opposition to a pro-choice American Bar Association (ABA) policy constituted "confidential" information that he received from the White House and could not previously disclose publicly. But those two facts he claims he is now free to disclose -- but wasn't free to disclose before -- were previously disclosed by Dobson himself on the day of Miers's nomination, in the same television appearance in which he also declared that "I do know things that I am not prepared to talk about here."

At least as late as October 5, Dobson was claiming that he could not reveal the "confidential" information that had led him to support the Miers nomination. Responding to concern from senators of both parties about his meeting with White House senior adviser Karl Rove and calls for Dobson to be subpoenaed to appear before the Senate Judiciary Committee, Dobson claimed on October 12 that two days prior to Miers's October 3 nomination, Rove told Dobson of three facts about Miers that led Dobson to support her nomination. Rove purportedly informed Dobson that: 1) Miers "is an Evangelical Christian ... from a very conservative church, which is almost universally pro-life"; 2) she "had taken on the American Bar Association on the issue of abortion and fought for a policy that would not be supportive of abortion"; and 3) she "had been a member of the Texas Right to Life."

As Media Matters for America has documented, all three facts Dobson cited had already been widely reported following Miers's nomination, even as he was claiming he couldn't disclose them because they were confidential. Therefore, either Dobson was not telling the truth then -- and was not in fact in possession of confidential information about Miers -- or he is not telling the truth now and has yet to disclose the confidences Rove shared with him. And, by continuing to uncritically repeat what Dobson now claims to have learned from Rove, the media are letting Dobson get away with not telling the truth about that conversation.

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For six years, political figures and interest groups on the left, right, and center, along with reporters and commentators, have noted that during his first presidential campaign, George W. Bush promised to use Supreme Court Justice Antonin Scalia as the model for his nominations to the court. Weekly Standard executive editor Fred Barnes was apparently the first to report this, in a July 1999 article for that magazine. For six years, Barnes and countless others repeated this fact, and neither Bush nor any of his aides seem to have ever challenged it -- in fact, Bush did not contest Al Gore's statement in a 2000 presidential debate that Bush had made such a promise. But in recent months -- when two vacancies gave Bush the opportunity to actually make nominations to the Supreme Court -- an apparent effort to walk back the promise has been under way, with Barnes himself playing a key role through a series of inconsistent statements about his own article.

Most recently, CNN White House correspondent Dana Bash narrated a segment on the October 12 edition of The Situation Room that purported to debunk the "urban myth" that, while campaigning for president, George Bush said that his Supreme Court nominees would be in the mold of Scalia. Bash claimed that the "myth" of Bush's Scalia comments was based on a November 1999 appearance on NBC's Meet the Press in which, as Bash noted, Bush praised Scalia but didn't promise to appoint a justice like him. Bash then said that during a 2000 debate, Gore, Bush's opponent, "connected the dots" -- falsely suggesting that Gore was the first to interpret Bush's Meet the Press comments as a promise to appoint a justice like Scalia. Finally, Bash provided a clue about the source of recent efforts to walk back Bush's promise by stating that "[a] longtime time Bush aide confirms to CNN Mr. Bush didn't actually publicly pledge a Scalia or a [Clarence] Thomas, but they made no effort to clarify."

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