Miers likely chosen for her support of expanded presidential powers

Knight Ridder | October 16, 2005
By DICK POLMAN

A lot of Americans are still wondering why President Bush picked Harriet Miers for the U.S. Supreme Court. It's the prime topic of discussion among the angry conservatives who have been pounding Miers like a pinata for two weeks.

They are strongly focused on abortion and fear that Miers is not necessarily a cinch vote to overturn Roe v. Wade, in part because her paper trail on policy seems considerably shorter than the paper trail of effusive greeting cards to her boss.

But the Miers nomination isn't about abortion at all. It's about putting somebody on the court who will protect the legacy Bush cares about most: the expansion of presidential power during the war on terrorism.

And who best to rule in favor of those expanded powers - the authority to detain "enemy combatants" indefinitely without trial; to prosecute them in Bush-created military tribunals and to limit their right of appeal; to quiz them under flexible rules of interrogation - than a jurist who had been legal counsel and staff aide to the president who sought those powers?

Clearly, the betting inside the White House is that Miers, a public defender of the Patriot Act and a legal adviser on wartime presidential powers, would be more dependable than the justice she would replace. It was Sandra Day O'Connor who warned, in a 2004 ruling that partly reined in Bush's expanded powers, that "a state of war is not a blank check for the president when it comes to the rights of the nation's citizens."

The administration's priorities were on full display last Tuesday, in a speech by White House chief of staff Andrew Card. While lauding Miers ("a pretty phenomenal woman") to a conservative gathering, he never mentioned abortion, gay marriage, church-state relations, or any other hot-button issue. All he mentioned was the importance of preserving presidential prerogatives.

Card told the Hudson Institute: "I have watched as she has counseled the president as he has had to address some of the most significant challenges in the history of our country - challenges, by the way, that require a constitutional understanding, because the demands on the president are frequently challenged by those who want to interrupt the president's ability to be president. ...

"Harriet Miers understands that Constitution, and she has helped guide the president ... (who) cannot keep his oath without a lot of help."

Ken Mehlman, the Republican Party chairman, has also weighed in, telling conservative leaders by phone that Miers, in the words of one report, "will not interfere with the administration's management of the war on terror."

This argument is echoed by pro-Miers conservatives. Says Hugh Hewitt, a blogger who worked as an assistant legal counsel under Ronald Reagan, "I suspect that the president thinks first and foremost about the global war on terror each morning," and "none of the justices, not even the new chief, has seen the battlefield in the global war on terror from the perspective, or with the depth of knowledge, as has the soon-to-be Justice Miers."

Many legal analysts agree that this is Bush's priority. Stephen Gillers, a law professor at New York University, said Friday: "These issues, which will come before the court over the next few years, concern the power of the president to essentially suspend constitutional rights during the war on terror. The issues are critical to the structure of the American political system, and to the separation of powers. We haven't seen issues this important since the cases that arose out of World War II. ...

"And it almost seems that Bush has picked someone he considers to be his surrogate."

Miers' defenders also see her as a Bush surrogate; Sen. Orrin Hatch, R-Utah, said the other day, "She's going to basically do what the president thinks she should." And that raises all kinds of thorny issues - notably, whether Miers' role as a White House legal advocate for enhanced presidential power might raise conflict-of-interest questions when such cases come before the court.

The Bush team has acknowledged that she has played a role; as part of its efforts to boost her nomination, the Republican National Committee has pointed out (quoting from a Washington Post profile that ran last June) that Miers provides guidance on "the legal parameters for the war on terrorism." But the extent of her role is still a mystery, because the White House has declined to release any paperwork.

It is not known, for example, whether Miers argued for the legality of Bush's expanded powers - among other things, the right to indefinitely detain, in military custody and without trial, an American citizen (such a case may soon reach the high court); and the right to prosecute suspected enemy combatants in Bush-created tribunals, in possible violation of the 1949 treaty known as the Geneva Conventions. (In July, a federal appeals court upheld the tribunals, saying the Geneva language was unenforceable. One of the judges who ruled for Bush was John G. Roberts Jr.)

Various provisions of the Patriot Act are also likely to reach the high court. Miers' legal advice, if any, on that legislation is not known. But she did give a speech last April extolling the act, saying it "has been used in so many ways to help protect this nation and its people."

Bush critics who are sensitive about civil liberties see this nomination as cronyism run amok. "The balance of power between the judicial and executive branches may be at stake in this nomination," said Yale law professor Oona Hathaway. "By selecting a close ally, the president could be trying to put his thumb on one side of the scale."

Bush defenders might be tempted to dismiss Hathaway's argument, since she once clerked for O'Connor. But some conservatives are similarly concerned that Miers' ties to Bush could compromise judicial independence.

Eugene Delgaudio, a conservative leader, would love to hear the senators ask Miers this question: "During (your White House service), have you ever had occasion to take a position contrary to that of the president? If so, describe the circumstances. If not, why not?"

Citing the significance of the terrorism cases, Gillers thinks the conflict-of-interest issue should be a priority during Senate confirmation hearings. He said, "The Judiciary Committee needs to insist on getting enough information so that it can determine the extent and quality of her advice to the president."

And that's crucial, he said, because federal law bars judges from ruling on cases they influenced in the past. Recusal is mandatory, the law states, when a judge "has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding, or expressed an opinion concerning the merits of the particular case in controversy." (By tradition, however, high court justices generally decide whether to disqualify themselves.)

Given the importance of those issues, it's fair to wonder why the Democrats haven't pounced with the charge that Bush is promoting a crony to protect his legacy. Two reasons: They don't want to question Bush's wartime powers and risk being labeled soft on terrorists; and they feel no urge to say much of anything, because it's easier to just watch the conservatives tear each other apart.

Fresh hostilities abound. Pat Robertson, backing Bush, warns that Senate Republicans should not be tempted to vote against Miers ("not on your life, if they want to stay in office"). Bush emissaries claim that anti-Miers conservatives are sexist, prompting outrage from the allegedly sexist. And conservative commentator Gerald Baker laments: "It is hard to overstate the mood of demoralization among conservatives. The rising tide of disillusionment (with Bush) is ready to break the dam of loyalty."

As long as this spectacle continues, it is likely that the more crucial issue of Miers' potential role as guardian of the Bush legacy will take second billing.

Last modified October 17, 2005