October 6, 2005, New York Times

New Questions From the Right on Court Pick

By DAVID D. KIRKPATRICK

WASHINGTON, Oct. 5 - A growing chorus of conservatives from Republican senators to the columnist George F. Will cast skepticism on Wednesday on President Bush's selection of Harriet E. Miers for the Supreme Court, expressing worry not only about unanswered questions on her legal philosophy but also about her legal credentials.

"There are a lot more people - men, women and minorities - that are more qualified, in my opinion, by their experience than she is," Senator Trent Lott, Republican of Mississippi, told MSNBC on Wednesday. "Right now, I'm not satisfied with what I know. I'm not comfortable with the nomination, so we'll just have to work through the process."

Senator George Allen, Republican of Virginia, considered a potential presidential candidate, said that "people who I have a great deal of admiration for" had said they were "disappointed or deflated" by the choice.

"I want to be assured that she is not going to be another Souter," Mr. Allen said, referring to Justice David H. Souter, a George H. W. Bush appointee who has upheld abortion rights and other liberal precedents. "I understand the president knows her well, but I don't."

The administration sent Ed Gillespie, the former Republican Party chairman helping to shepherd Ms. Miers through Senate hearings, to shore up support at a weekly meeting of conservative organizers convened Wednesday by the strategist Grover Norquist. There, Mr. Gillespie was pelted by criticism that the president had failed to pick a committed conservative or a legal star.

"There was pretty much unanimity," said one conservative who spoke anonymously because confidentiality was a condition of the meeting. "Morale is low right now at the base."

Ms. Miers, meanwhile, continued her rounds of Capitol Hill. Senator Mike DeWine, Republican of Ohio, pronounced her "tough as nails" after an hourlong meeting with her. Responding to criticism that Ms. Miers had never been a judge, Mr. DeWine praised the breadth of her practical experience in the White House and in her long career as a private lawyer. "She is somebody who has gone out late at night to get someone out of jail," Mr. DeWine said she had told him.

None of the senators who spoke with her said they discussed constitutional issues. "She listens more than she talks," said Senator Orrin G. Hatch, Republican of Utah.

Democrats, delighted by the division on the right, pushed Ms. Miers to repudiate assurances about her views that the administration has reportedly made through private conversations or closed conference calls with conservatives. "No Supreme Court nomination should be conducted by winks and nods," said Senator Patrick J. Leahy of Vermont, the ranking Democrat on the Judiciary Committee.

Referring to statements by the evangelical conservative James C. Dobson that he had been given confidential information about Ms. Miers's views, Mr. Leahy said: "I asked her about that specifically. I said, 'Has anybody been authorized to speak on your behalf or have you spoken to anybody about how you would vote?' She assured me, 'Absolutely not.'

"I said, 'Would you disavow anybody who send out assurances that they know how you would vote?' She said, 'Absolutely.' "

After a meeting on Wednesday of the so-called Gang of 14, a bipartisan group of senators who agreed earlier to block filibusters against judicial nominees except in "extraordinary circumstances," several members of both parties said they agreed that so far Ms. Miers "did not set off alarm bells," as Senator Susan Collins, Republican of Maine, put it. If the Republican majority of 55 senators votes on party lines, a filibuster would be the only way Democrats could block a nominee.

On Wednesday, however, the Democrats mostly stood back as conservatives took aim at the selection of Ms. Miers. Mr. Will, a conservative essayist, made the case for her rejection in a syndicated column published on Wednesday. "There is no evidence that she is among the leading lights of American jurisprudence, or that she possesses talents commensurate with the Supreme Court's tasks," he wrote.

If 100 legal experts had each recommended 100 top candidates for the Supreme Court, Mr. Will added, "Miers's name probably would not have appeared in any of the 10,000 places on those lists."

Mr. Gillespie, who also attended a lunch of the Senate Republicans to make the case for Ms. Miers, acknowledged "pointed questions" from conservatives. He said he had told Mr. Norquist's meeting about her "distinguished career" as a lawyer, her work "shoulder to shoulder with the president" and her central work "moving forward conservative nominees to the federal judiciary."

"The more people on the conservative side of the spectrum know about her, the stronger their support will get," Mr. Gillespie said.

Christian conservatives, who see the vacancy left by Justice Sandra Day O'Connor's retirement as the chance to turn the tide in 30 years of culture wars over abortion and social issues, continued to complain that Ms. Miers had no public record of her legal approach to such subjects.

Dr. Dobson, founder and chairman of Focus on the Family and one of a handful of prominent Christian conservatives to support the selection of Ms. Miers publicly, said in his radio program Wednesday: "There has been a firestorm of activity since then. This nomination has angered and disillusioned many conservatives, many Christian conservatives."

Explaining his reasons for supporting her and praying for guidance, Dr. Dobson cited her religious faith and said he knew her conservative evangelical church. "I know the person who brought her to the Lord," he said. "I have talked at length to people that know her and have known her for a long time."

Dr. Dobson acknowledged conversations with Karl Rove, the president's top political adviser, about the selection but declined to disclose their contents. "You will have to trust me on this one," he said, adding that if he was wrong, "the blood of those babies" - aborted fetuses - "will be on my hands to some degree."

But Gary Bauer, president of the Christian conservative group American Values, said that he remained unconvinced about Ms. Miers despite her religious views. "As of today, not one friend, associate, co-worker or White House official is able to produce one sentence she has written or spoken in criticism of Roe v. Wade," he wrote in an e-mail newsletter to supporters. "Her apparent silence is troubling - at least to me."

Senator John Thune, Republican of South Dakota, said he, too, was nervous about Ms. Miers but also about a fight within his party. "I don't think that an intraparty battle is what we need," he said. "But I think before too long the left is going to go off on her, and that will effectively bring everybody together."