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.
I.E., she was chosen (allegedly) in order to make the Judicial Branch subservient to the Executive Branch. After all, that pesky little scrap of paper known as the Constitution keeps interfering with Bush doing whatever he pleases.
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