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From:
http://www.washingtonpost.com/wp-dyn/content/article/2005/10/06/AR2005100602069.html?referrer=email

Right Sees Miers as Threat to a Dream

By Dan Balz
Washington Post Staff Writer
Friday, October 7, 2005; Page A01

If there has been a unifying cause in American
conservatism over the past three decades, it has been
a passionate desire to change the Supreme Court. When
there were arguments over tax cuts and deficits, when
libertarians clashed with religious conservatives,
when disputes over foreign policy erupted, reshaping
the judiciary bound the movement together.

Until Monday, that is. Now conservatives are in a
roiling fight with the White House over President
Bush's nomination of White House counsel Harriet Miers
to the high court. They fear that the president may
have jeopardized their dream of fundamentally shifting
the court by nominating someone with no known
experience in constitutional issues rather than any
one of a number of better-known jurists with
unquestioned records.

The dismay among conservatives stems partly from the
fact that so little is known about Miers, a
well-regarded corporate lawyer, member of the Texas
legal establishment, evangelical Christian and
confidante of the president. But in a deeper way, it
reflects the smoldering resentment about other
administration policies -- from big-spending domestic
programs to fragmentation over Iraq -- and enormous
frustration that a president who prides himself on
governing in primary colors has adopted a stealth
strategy on something as fundamental to conservatives
as the Supreme Court.

"No one has anything against her," said William
Kristol, editor of the Weekly Standard and one of the
first conservatives to register his disappointment.
"But the idea that one is supposed to sacrifice both
intellectual distinction and philosophical clarity at
the same time is just ridiculous."

For more than two decades, conservatives have been
developing a team of potential justices for the high
court in preparation for a moment such as this. They
point to jurists such as Judge J. Michael Luttig of
the U.S. Court of Appeals for the 4th Circuit, Judge
Michael W. McConnell of the 10th Circuit and Judge
Priscilla R. Owen, newly sworn in on the 5th Circuit,
as examples of people who have not just paid their
dues but also weathered intellectual battles in
preparation for reshaping the Supreme Court.

Conservatives were deeply offended when presidential
emissary Ed Gillespie told a gathering on Wednesday
that some criticism of Miers has "a whiff" of sexism
and elitism. They said there are any number of female
judges who would have drawn an enthusiastic reaction
from the right, and one former conservative activist
noted that Owen, a hero among conservatives, went to
law school at Baylor University, hardly an Ivy League
institution.

The reaction to Miers has been in sharp contrast to
the reception afforded new Chief Justice John G.
Roberts Jr. when he was nominated. While Roberts did
not come to the battle with a reputation as one of the
activists in the conservative legal movement,
conservatives were reassured by his experience in the
Reagan and the George H.W. Bush administrations and
dazzled by his brainpower. On that basis, they
believed he was well equipped for the intellectual
combat on the high court. Miers inspired no such
feelings when she was nominated.

Bush's failure to look to conservatives on the
appellate courts to replace Justice Sandra Day
O'Connor proved to be a massive case of dashed
expectations. "The feeling was after John Roberts that
surely the president was going to have to go to the
bench where there were all these very excellent people
who are serving on the circuit court or scholars who
have been grooming for this possibility for years and
years," said Paul M. Weyrich, a leading voice in the
conservative movement and one who has been openly
skeptical of Miers.

Weyrich said he had once been told by Justice Clarence
Thomas it was important not just to have conservatives
on the court, but also conservatives who have "been
through the wars and survived." Having won the White
House and captured majorities in Congress,
conservatives eagerly anticipated a fight in the
Senate over a nominee like that and believed Bush
would have the stomach for one.

From the White House vantage point, however, the very
fact that Miers had not been through those wars was
apparently part of her appeal -- she did not have a
long record that Democrats could use as a weapon, as
they did with such previous nominees as Robert H.
Bork.

The conservative project to reshape the judiciary long
predates this presidency. This only heightened the
surprise and resentment that the president has asked
all those who have been in the vanguard of that
movement to sublimate their feelings and now march in
lockstep behind someone on his word alone.

Moreover, some conservatives regard it as patronizing
for Bush to suggest Miers will continue to share his
views on legal philosophy long after he leaves the
White Houses.

"With so much at stake, to many of us it seems
ill-advised to nominate somebody that we're then told
we should have faith in, when there isn't any evidence
of intellectual rigor being applied to these
contentious issues," said conservative activist Gary
Bauer. "There are probably seven to eight names that
have been looked to, have written wonderful decisions
that are strong intellectually, compelling in their
presentation. They are the kind of people you want to
look to if you want to try to move the legal culture
in America."

The uproar over Miers is particularly striking because
it is aimed as much at the president as at his nominee
and comes from that part of the party he has
assiduously courted from the time he first ran for
president. But conservative opinion leaders said he is
bearing the brunt of pent-up frustration among
conservatives, who watched as terrorism, the Iraq war,
and now Hurricane Katrina led to massive growth in
government and huge deficits under a president who
ostensibly shares their small-government philosophy.

From the prescription drug bill to the failure to veto
any spending legislation to what some conservatives
regarded as a reincarnation of the Great Society in
Bush's approach to reconstruction after Katrina, the
president's credibility as a genuine conservative
already was in question when he asked his loyalists to
trust him on Miers.

Former House speaker Newt Gingrich (R-Ga.), who has
written an op-ed piece urging conservatives to rally
behind Miers, said he nonetheless understands why his
ideological allies doubt the president. And he fears
the White House may underestimate the reasons: "Do
they understand that beyond getting past the
unhappiness with this choice, there is a profound
sense of discontent within the conservative movement?"

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