Right-wing adamant on nominee

Bush's base pushes for strict constructionist like Scalia, Thomas


Supreme Court Nomination


WHEN PRESIDENT BUSH TAPPED HARRIET E. MIERS — When President Bush tapped Harriet E. Miers - a trusted friend and his top lawyer at the White House - for the U.S. Supreme Court this month, he knew he could be in for a fight.

What unfolded over the next three-and-a-half weeks, however, was a surprise. The lukewarm reception to Miers' nomination from the president's conservative base never heated up and, over time, froze into sometimes strident opposition.

Some Senate Republicans tried to shift the blame for the disastrous endgame onto Democrats yesterday, saying that demands for documents and information about Miers' tenure at the White House could not be met without setting a dangerous precedent for future administration lawyers.

But the torpedo that sank the nomination came from the right, fueled by Republican senators asking for those same documents and outside activists wondering aloud about Miers' qualifications and judicial philosophy. And now that Miers is off the table, the president's right flank wants the type of Supreme Court justice he promised them: A strict constructionist along the lines of Antonin Scalia and Clarence Thomas.

Conservative Republican senators and activists said yesterday that they took no joy in Miers' withdrawal. But the stakes are obvious as Bush contemplates his next move, they said.

"Clearly, the base has been heard and will continue to be heard," said Jan LaRue, chief counsel for Concerned Women for America, a conservative advocacy group that called on Miers to withdraw.

LaRue said that Bush could easily repair the damage done to his relationship with the voters and activists that make up his base if he picks a conservative nominee with a clear record.

"The message is loud and clear about the nominee that we want," she said.

Sen. John Thune, a South Dakota Republican, said the president's next pick is very important and should be done strategically. Bush may have miscalculated early on, he said, but now it is evident which path he should take.

"I think what it shows is just how enormous the stakes were in this, and how much built-up interest there was for having a nominee to fill this vacancy who was in the Scalia-Thomas mold," Thune said. "This was something that was incredibly deeply felt. This is an issue that unites conservatives around the country."

Paul M. Weyrich, head of the Free Congress Foundation, described his reaction to the news that Miers had withdrawn as "relief." Manuel Miranda, a former aide to Senate Republican leader Bill Frist who is now the chairman of the conservative Third Branch conference, a legal advocacy group, said "the news is only good - for the president and his party, and their ability to serve the country."

Senate conservatives had help from their Democratic colleagues, who largely stood silent while watching the Republicans struggle to muster some enthusiasm for Miers. That arm's length partnership was briefly in evidence yesterday, when a beaming Sen. George Allen, a Virginia Republican, paused on his way out of the Senate chamber to shake hands with New York Sen. Charles E. Schumer.

The Democrat burst into guffaws as Allen pumped his arm, wisecracking about the "different reasons" both men were smiling.

The alliance is unlikely to be seen again on Capitol Hill. Now, Bush faces a choice and could end up in another fight, no matter which way he goes.

One option is to pick a nominee with the kind of public history that would energize conservatives, but risk losing the support of Democrats and moderate Republicans. The other is to name someone with a more moderate record - or a scant paper trail - such as Attorney General Alberto R. Gonzales, and possibly start the battle with conservatives all over again.

A nominee such as Gonzales, LaRue said, would present some of the same issues with executive privilege as Miers did. And the candidacy would be a disappointment that would probably land Bush right back where he started, she said, given conservatives' misgivings about Gonzales' stances on key issues such as abortion rights and affirmative action.

"Why do you want to battle with both the right and the left?" LaRue asked.

Allen said the president should nominate a candidate with an obvious judicial record. He suggested three judges now on the 4th U.S. Circuit Court of Appeals - J. Harvie Wilkinson III, J. Michael Luttig and Karen J. Williams - as well as two other federal appeals court judges, Janice Rogers Brown and Priscilla Owen, who were confirmed by the Senate this year after being blocked during Bush's first term.

Allen, a potential candidate for president in 2008, said he and others would be scrutinizing the next nominee just as carefully as they did Miers.

"I have a high burden of proof," he said. "This is a crucial seat, a swing seat."

Another presidential hopeful, Kansas Sen. Sam Brownback, echoed those comments.

"It needs to be a very strong individual, with a bright mind and a proven track record," he said.

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