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Issues are key after all

In a switch from Roberts' confirmation hearings, nervous conservatives now want to know her stand

BY TOM BRUNE | WASHINGTON BUREAU

October 9, 2005

WASHINGTON - The outrage among many conservative activists and sullen anger of several Republican senators at President George W. Bush's pick Monday of a Supreme Court nominee whose views on abortion and other social issues are unknown suggests that ideology, after all, does matter, several experts said.

After Bush chose John G. Roberts to be chief justice last month, Republicans and conservatives insisted that Democrats not ask questions about ideology or issues, because, they said, those queries inappropriately inject politics into an independent judiciary that is supposed to be above politics.

"One is not qualified for the court by virtue of his position on issues, but rather by his ability to judge fairly," said Sen. Jon Kyl (R-Ariz.) as he urged senators to limit the type of questions they asked Roberts in his confirmation hearings.

But among some conservatives, the tune has changed, in dramatic fashion, with Bush's decision to pick his discreet and little-known White House counsel, Harriet Miers, for the pivotal seat of moderate Justice Sandra Day O'Connor.

Angry that Bush did not choose someone with a clear track record like that of conservative Justices Clarence Thomas and Antonin Scalia, activists on the right have adopted the motto "trust but verify" and demand Miers reveal her views in her confirmation hearings.

"I promised the White House that if I am satisfied with the hearings, I'll support her," said Free Congress Foundation chief Paul Weyrich, a longtime conservative who has criticized Miers' selection.

Two conservative Republicans on the Judiciary Committee, Sens. Jeff Sessions of Alabama and Sam Brownback of Kansas, said Miers must establish conservative credentials in the hearings.

"I think conservatives do not have confidence she has a well-formed judicial philosophy and they are afraid she might drift and be a part of the activist group like Justice [David] Souter has," Sessions told The Associated Press on Friday.

Souter, who Bush's father promised was conservative, often votes with court liberals.

"She will need to articulate a vision of the Constitution and the role of a judge that is sound or she could be in trouble with the Republican senators," Sessions said.

Conservatives appear to be flip-flopping, legal experts said.

"When some Republicans said that ideology didn't matter, they really meant that Democrats and liberals should shut up," said Cass Sunstein, a liberal University of Chicago law professor. "Now that the president has chosen someone whose ideology is uncertain, many conservatives are raising questions."

Douglas Kmiec, a conservative Pepperdine Law School professor, agreed. "Unfortunately, for a few, the opposition to Miers does seem to be ideologically driven," he said.

Ron Cass of the pro-Bush Committee for Justice, which was founded to promote constitutionalist judicial nominees, told critics to "stop whining" and to not seek ideological views. "Conservative critics should be especially ashamed," he said. "Conservatives have been insisting that judges should respect the Constitution and laws, secure that this is enough to ask."

The outrage on the right was satisfying to some Democrats.

"I feel vindicated," said Sen. Charles Schumer (D-N.Y.), who was criticized by Republicans and the right for insisting the Senate had the obligation to ask nominees about ideology.

"In the previous nomination of John Roberts, they said, 'Don't ask about ideology or judicial philosophy,'" he said. But in Miers' hearing, he said, "I think you're going to get a plea to answer questions seriously and fully, not just from Democrats but also from Republicans, not just from the liberals but also from conservatives."

Because Miers is so unknown, Schumer agreed with conservatives that there is an even greater need for Miers to answer questions than Roberts.

Bush boosted Miers' nomination again in his radio address yesterday, and at least half of the 10 Republicans on the Judiciary Committee already have come out in support of Miers.

One of them, Sen. John Cornyn (D-Texas), expects most Republicans to treat Miers as they treated Roberts.

The key may be two of the newest and most conservative committee members, Brownback and Sen. Tom Coburn (R-Okla.). Conservative Weyrich predicts they could join the eight committee Democrats to vote against her.

If Miers appears to be for abortion rights, Brownback said, he could vote against her.

"I would like a nominee with a proven track record on important issues," Brownback said. "I look forward to having these questions answered."