Foe of Abortion, Senator Is Cool to Court Choice - New York Times

Foe of Abortion, Senator Is Cool to Court Choice - New York TimesOctober 7, 2005
Foe of Abortion, Senator Is Cool to Court Choice
By SHERYL GAY STOLBERG

WASHINGTON, Oct. 6 - Amid uproar among conservatives over the candidacy of Harriet E. Miers for the Supreme Court, one of the most ardent abortion opponents in the Senate said Thursday that Ms. Miers had not persuaded him to vote to confirm her.

The senator, Sam Brownback, Republican of Kansas, told reporters that in an hourlong meeting with him, Ms. Miers had steered clear of discussing Roe v. Wade, the 1973 Supreme Court decision that found a constitutional right to abortion, and had done little to assure him that she would be open to revisiting or overturning that case.

"No promises were made either way," Mr. Brownback said. He said he would consider voting against the nomination, even if President Bush made a personal plea for his support.

Asked if he was impressed with Ms. Miers, Mr. Brownback paused, and then offered a careful reply: "She's a very decent lady."

The senator said he had tried to initiate a discussion of abortion law by raising the case of Griswold v. Connecticut, a 1965 decision that established a married couple's right to use contraception and later served as a basis for Roe. Mr. Brownback said Ms. Miers did not use the term "settled law" to describe Roe - a phrase that, he said, would have been "a red flag" indicating she would not overturn the decision. But neither would she discuss it, saying related cases could come before the court.

"She has stated that she does not believe the circumstances of Griswold will come back in front of the court," Mr. Brownback said, recounting the conversation, "but that the legal issue of Roe, clearly, and the legal issue involved here is very much a live issue."

A White House spokeswoman, Dana Perino, later said that Ms. Miers had simply acknowledged that "abortion and Roe-related issues are ones that are live before the court."

While other Republican senators have emerged from their meetings with Ms. Miers offering more effusive praise of her than before, Senator Brownback said his view was unchanged. He complained that he was left trying "to gather little pieces of shreds of evidence" about her views not only on abortion but on other matters of importance to social conservatives, including gay marriage and the role of religion in public life.

The Kansas senator is important for two reasons. First, he is a member of the Senate Judiciary Committee, and it would be an embarrassment to President Bush if a Republican on the panel voted against Ms. Miers. Second, Mr. Brownback, a possible presidential candidate in 2008, is considered a leading voice for conservatives in the Senate. Should he vote against Ms. Miers, other Republicans contemplating White House bids could feel compelled to follow.

Ms. Miers, the White House counsel and former president of the State Bar of Texas, has been assiduously courting senators since Monday, when President Bush announced that he had picked her to fill the seat being vacated by Justice Sandra Day O'Connor, a critical swing vote. But the selection has drawn intense criticism from both ends of the political spectrum, with the left labeling Ms. Miers a crony and the right complaining that Mr. Bush has squandered a chance to pick a candidate with demonstrable conservative credentials.

On Thursday, some conservative senators tried to push back. Senator Lindsey Graham, Republican of South Carolina, denounced what he called a smear campaign by conservatives and said Ms. Miers's critics should "just shut up for a few minutes" to let her make her case.

Mr. Graham said Ms. Miers did not seem troubled by the attacks. But in a speech earlier this year before the Republican National Lawyers Association, Ms. Miers said she was deeply troubled by the treatment received by another judicial nominee and fellow Texan, Priscilla Owen. Judge Owen, whose confirmation had been blocked by Democrats, was ultimately confirmed as an appeals court judge.

"I read with disbelief the horrific press and the efforts to diminish the character, the intelligence, the service of this very fine person," Ms. Miers said in the April 22 speech.

"It's a tragedy what's happened to this fine woman," Ms. Miers concluded. "It's a tragedy what has happened to this fine judge."

Aside from Mr. Brownback, Ms. Miers seems to be assuaging the concerns of some Republican senators. Mr. Graham said Thursday he was "very predisposed to support her," although he did say she would have to "create a comfort level" among conservatives and persuade the public "that she's qualified, that her life experiences, the sum total of them, make her capable of having this job."

As of Thursday, Ms. Miers had met with 15 senators, only three of them Democrats. One of the Democrats, Senator Richard Durbin of Illinois, the number two Democrat in the Senate, said that when he asked her about decisions of the Bush administration, Ms. Miers said she was not sure if she could comment on her role. And he said that, unlike the most recent nominee, Chief Justice John G. Roberts Jr., who spent his legal career arguing cases before the Supreme Court, Ms. Miers was not yet ready to discuss many substantive constitutional or policy issues.

Mr. Durbin said the heavy criticism from conservatives was putting Ms. Miers in an impossible position. "If she successfully satisfies the far right, where does that leave the rest of America?" Mr. Durbin said. "I can't see the endgame. I can't see how it ends."

Neither could Senator Brownback, who did not say whether he believed Ms. Miers would be confirmed. Although Chief Justice Roberts took essentially the same position as Ms. Miers in discussing Griswold and Roe, and Mr. Brownback voted for him, the senator has said consistently that he wanted the nominee for the O'Connor seat to have "a clear track record."

Asked to compare the two, Mr. Brownback described the chief justice as "a rock star of a lawyer." Of Ms. Miers, he said, "You're really following Elvis here."