Supreme Court Choice Shows Bush Is Not Spoiling for a Fight - New York Times

Supreme Court Choice Shows Bush Is Not Spoiling for a Fight - New York TimesOctober 4, 2005
Supreme Court Choice Shows Bush Is Not Spoiling for a Fight
By RICHARD W. STEVENSON

WASHINGTON, Oct. 3 - There is still much to learn about Harriet E. Miers, but in naming her to the Supreme Court, President Bush revealed something about himself: that he has no appetite, at a time when he and his party are besieged by problems, for an all-out ideological fight.

Many of his most passionate supporters on the right had hoped and expected that he would make an unambiguously conservative choice to fulfill their goal of clearly altering the court's balance, even at the cost of a bitter confirmation battle. By instead settling on a loyalist with no experience as a judge and little substantive record on abortion, affirmative action, religion and other socially divisive issues, Mr. Bush shied away from a direct confrontation with liberals and in effect asked his base on the right to trust him on this one.

The question is why.

On one level, his reasons for trying to sidestep a partisan showdown are obvious, and come down to his reluctance to invest his diminished supply of political capital in a battle over the court.

The White House is still struggling to recover from its faltering response to Hurricane Katrina. The Republican Party is busily trying to wave away a scent of second-term scandal. The relentlessly bloody insurgency in Iraq continues to weigh heavily on his presidency. And no president can retain his political authority for long if he loses his claim to the center.

"The swagger is gone from this White House," said Charles E. Cook Jr., editor of The Cook Political Report, a nonpartisan newsletter, citing a litany of other difficulties afflicting the administration, including high gasoline prices and the failure of Mr. Bush's push to overhaul Social Security. "They know they have horrible problems and they came up with the least risky move they could make."

Looked at another way, the choice is much harder to explain. In selecting Ms. Miers, Mr. Bush stepped deeper into a political thicket that had already scratched up his well-tended image of competence, the criticism that he is prone to stocking the government with cronies rather than people selected solely for their qualifications.

Perhaps even more seriously for him and his party, he left many conservatives feeling angry and deflated, if not betrayed, greatly exacerbating a problem that has been growing more acute for weeks because of the right's concern about unchecked government spending following Hurricane Katrina. For an administration that has at every turn tried to avoid the mistakes of Mr. Bush's father, especially the first President Bush's alienation of his right wing and the subsequent lack of enthusiasm for his re-election effort in 1992, the fallout on Monday was especially glaring.

A few months and a political epoch ago, Mr. Bush was willing to go to the mat for a controversial conservative nominee, pressing the Senate repeatedly to confirm John R. Bolton as ambassador to the United Nations and then giving Mr. Bolton a recess appointment when Democrats blocked him. On Monday, weakened and struggling to avoid premature lame duck status, the administration had to defend itself against suggestions from the right that it has not lost just its way but its nerve.

Writing for National Review Online, David Frum, a conservative commentator and former speechwriter for Mr. Bush, said the president's supporters had reason "to be disappointed and alarmed." When Vice President Dick Cheney, who was dispatched to the conservative radio talk shows on Monday, defended the choice to Rush Limbaugh, saying that in 10 years Ms. Miers will have proven to be a "great appointment," Mr. Limbaugh responded, "Why do we need to wait 10 years?"

Ms. Miers is undoubtedly a conservative. Mr. Bush has worked closely with her for more than a decade, and on Monday he made clear his belief that she meets the standard that he most frequently sets out for his judicial nominees, that they faithfully interpret the Constitution and not legislate from the bench. There is nothing in her background that suggests she would stray far from conservative doctrine in her thinking, and some indications, including her involvement in an evangelical church and a dispute about abortion she was involved in when she led the Texas Bar Association, that she is very much part of the social conservative movement.

But there is no clear public evidence that she meets another test that Mr. Bush long ago suggested he would apply to his nominees: that they fit the mold of Justices Antonin Scalia and Clarence Thomas, who have aggressively sought to move the court rightward, becoming heroes to many conservatives in the process.

What Ms. Miers does bring to the court is a long record of loyalty to Mr. Bush, a trait that some scholars said would be attractive to the White House at a time when the court faces a welter of conflicts, beyond abortion and other social issues, that are of immediate concern to the administration.

Foremost among them, said William P. Marshall, a former deputy White House counsel in the Clinton administration, are executive power and government secrecy. In both areas, Mr. Bush has sought to establish wide latitude for the executive branch, especially in battling terrorism and religious extremism at home and abroad.

In this area, Mr. Bush might be better able to count on a loyalist than on an ideologue, said Mr. Marshall, a law professor at the University of North Carolina at Chapel Hill.

Beyond politics, ideology and Mr. Bush's thinking about the issues on the court's plate, there is another way of assessing his selection. Mr. Bush has always prided himself on his ability to judge character and putting into high-ranking or sensitive jobs people with whom he feels comfortable. He puts a premium on loyalty, and Ms. Miers has served him in a long list of jobs with that most prized of traits among the Bush family, discretion.

Mr. Bush also seems to relish challenging, from time to time, conventional political wisdom, and detaching himself from the day-to-day scrums in Washington to take the long view. And he has always taken delight in surrounding himself with strong women - a trait publicly reinforced in this case by Laura Bush, who has expressed more than once a hope that he would nominate a woman to the court.

"There's a point at which as president you can't game out everything," said Charles O. Jones, an emeritus professor of political science at the University of Wisconsin. "You've got to go to the core of your own way of doing things. This is a nominee, I would guess, in whom he has confidence and senses in his own mind that she has got the qualities for the job."