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Bush's Miers Predicament Forces GOP Split or Nominee Withdrawal

By Robert Schmidt

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nite among conservative backers and leading opinion makers who question her qualifications. Bush now may be forced to choose between an embarrassing withdrawal of the nomination or accepting a fissure among conservatives that could jeopardize the party's hold on power.

"Right now the base is completely fractured and people are very concerned about the impact on the 2006 elections," said Manuel Miranda, who heads a coalition of 150 conservative and libertarian groups and opposes Miers. "The troubling thing is that the Supreme Court was the gold ring and the president's thinking appears indiscernible, unless you're willing to take it as a matter of faith."

Miers, 60, was nominated by Bush on Oct. 3 to replace retiring Justice Sandra Day O'Connor, a pivotal vote on the court. Miers, the White House counsel and a close Bush confidant, was co-managing partner of a law firm in Dallas and president of the Texas state bar association who has never been a judge.

For conservatives who are seeking to turn the court to the right, she has a scant paper trail on issues like abortion, affirmative action and separation of church and state.

Conservative Rebellion

The White House, seeking to tamp down the internecine rebellion, is defending Miers as a judicial conservative and touting her 25-year membership in an evangelical Christian church whose members are opposed to abortion. Bush has rejected calls to pull back the nomination and said earlier this week that Miers's credentials would be clear after she appears before the Senate Judiciary Committee, probably next month.

Bush's spokesman, Scott McClellan, yesterday dismissed the idea that Miers might drop out if she decides that she can't withstand the uproar. "No one that knows her would make such a suggestion," he said.

Public opinion polls also haven't done much to bolster the nomination. A Wall Street Journal/NBC News poll released earlier this week found that just 29 percent of Americans thought Miers was qualified to sit on the high court, while 24 percent said she was unqualified and 46 percent said they didn't know enough about her to decide. The poll of 807 adults had an error margin of plus or minus 3.4 percent.

Editorial Opinion

This week the Pittsburgh Post-Gazette called on Bush to drop the nomination "to spare the country any more embarrassment." And the columnists have been scathing.

Peggy Noonan, who wrote speeches for Bush's father, this week urged Miers to "take the hit" and withdraw so the president could pick "one of the outstanding jurists thoughtful conservatives have long touted." She mentioned federal appeals court judges Edith Jones, Edith Clement or Janice Rogers Brown.

Syndicated columnist Charles Krauthammer was similarly blunt in an Oct. 7 article. "If Harriet Miers were not a crony of the president of the United States, her nomination to the Supreme Court would be a joke, as it would have occurred to no one else to nominate her," he wrote.

Miers's nomination contrasts with Bush's choice for chief justice, John G. Roberts Jr., who was embraced by conservatives, many of whom knew him as a Washington appellate lawyer. While Roberts also didn't have publicly known views on social issues, the right took comfort from his work in the administrations of Presidents Ronald Reagan and George H.W. Bush.

`Saliva Test'

Democrats, meanwhile, have been conspicuously silent on Miers, preferring to watch the Republican sniping.

The party's schism over the nomination threatens the Republicans' control of Congress, said former Senator Alan Simpson.

"This will be the demise of the majority, sadly enough," Simpson, a Wyoming Republican, said in an interview. "Once they start giving each other the saliva test of purity, they lose."

Even Miers's supporters acknowledge that Bush is in a tough and unusual position.

"It is a rare instance of the base being displeased with a major decision of this president," said Sean Rushton, executive director of the Committee for Justice, a group that backs Miers. Rushton predicted that the conservative carping will abate and that Miers will win confirmation.

"I don't see this president backing down from this fight," he said. "He will do more to define her in the coming days, and she will define herself at the hearings."

Senate Hostility

Whether the Senate Judiciary Committee will oppose Miers remains an open question. Two Republican senators on the panel, Sam Brownback of Kansas and Tom Coburn of Oklahoma, have been publicly skeptical about the nomination. The nomination also encountered hostility during a recent private meeting of Republican aides on the Senate panel, the New York Times reported this week, citing committee staffers.

Douglas Kmiec, a former assistant attorney general under Reagan and the first Bush, said he isn't surprised by the palpable anger emanating from much of the conservative community.

"The public conservative mind expected a name from a specific list and, when the president went off-list, he caused that level of discomfort," Kmiec said. "It is the discomfort of having to think of new things and the disappointment of not having your favorite person get the nomination."

Although he hasn't yet made up his mind on Miers, Kmiec said he supports the `idea" of having a non-judge on the high court.

"I think the base will be relieved and satisfied once Harriet Miers is heard from," he added.

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