Bush nominates with an eye on the polls

BY CRAIG GORDON | WASHINGTON BUREAU

October 4, 2005

WASHINGTON - In the end, President George W. Bush blinked.

Squeezed between low approval ratings on one side, and conservative activists spoiling for a Supreme Court fight on the other, Bush stepped back from a potential brawl with Democrats yesterday by nominating Harriet Miers.

Bush could have made the kind of gasoline-on-the-fire pick some conservatives wanted, such as Priscilla Owen or Janice Rogers Brown, two Bush judicial appointees that likely would have provoked an all-out confrontation with Senate Democrats.

Instead, Bush chose a longtime confidant and White House counsel whose judicial philosophy is so unknown that the criticism is coming not from Democrats, but in unusually harsh terms from leading conservatives. Even after ascending to the presidency in controversial fashion, this is a president who has picked his share of fights with Democrats. But right now, Bush wanted a nominee seemingly designed to avoid the kind of fight that could have crowded out any chance of salvaging some legislative achievements from a second term already in peril because of Iraq and Hurricane Katrina.

Miers is the pick of a man who - despite his protestations to the contrary - follows polls closely and sees that he can't afford to squander his dwindling political capital on a battle over the bench, some analysts said.

"If his political fortunes were brighter at the moment, he might have more flexibility, but when you're down in the polls, your hand isn't as strong," said John Pitney, a one-time House Republican aide who is a professor at Claremont McKenna College in California. "He has to choose his fights carefully"

Many of the people who really matter in this fight - the 55 Republicans senators whose votes are enough to put Miers on the court, barring a filibuster - issued supportive statements yesterday, though some with notably less enthusiasm than for Bush's first pick, Chief Justice John Roberts. Pitney and others predicted Bush could in the end hold on to all of those votes.

Yet there was no mistaking the disappointment among some of the right, and it signaled something of a disconnect between Bush and his conservative supporters, who also were disappointed recently in his whatever-it-costs approach to Katrina rebuilding. Conservative activists worry that Bush is letting slip the chance to fulfill the promise of the Reagan Revolution by steering the third and final branch of government rightward for decades to come.

"How many chances do you get to change the moral direction [of the court]? They view this as their time," said Republican pollster Tony Fabrizio.

Conservative talk-radio host Rush Limbaugh talked yesterday of Bush's supporters waiting 20 years to get a Republican president, Senate and House and the need to press the advantage by changing the high court. "They feel that we could win the fight, and that we could win the fight handily, and it would be a nail in the coffin of the left," Limbaugh said.

The White House's answer to conservatives yesterday has been one that often has sufficed in the past - in effect, trust us. Asked how he would allay conservative worries over Miers, White House adviser Ed Gillespie said, "It begins with the fact that the president obviously understands the historic significance of this nomination and ... has come to see first-hand her commitment to his approach to the bench."

But with a written record one conservative analyst put at just 2,295 words in readily available public databases - a pair of articles, written in 1992 and 2000 - conservatives weren't in a trusting mood. "She's likely to be just as conservative, but we don't know. She's a blank slate," said Roger Pilon of the Cato Institute, who served in the Reagan administration.