For Bush, this pick may avert a battle
President Bush yesterday once again backed away from an open confrontation over the future of the Supreme Court, choosing a nominee whose lack of a record on divisive social issues guarantees that activists on both sides of the fierce battle over judicial nominations will be frustrated and angry -- with the White House, and not necessarily with each other.
In picking the White House counsel, Harriet Miers, to succeed retiring Justice Sandra Day O'Connor, Bush chose to avoid a battle that seemed inevitable just a few months ago.
Last spring, Senate Republican leaders and the White House sought to change Senate rules to prevent a bloc of 41 Democratic senators from holding up judicial nominations, a move widely seen as clearing the way for a conservative Supreme Court nominee to be confirmed in a narrow party-line vote. But a group of 14 moderate senators from both parties thwarted the efforts of the Republican leadership, enacting a compromise that preserved the Senate's filibuster rules.
Those moderate senators may have changed Bush's plans, as well. In seeking to fill two consecutive Supreme Court openings -- a rare chance to alter the shape of the Supreme Court -- Bush compiled a list of candidates that included longtime judicial stalwarts of the right such as Judges J. Michael Luttig and Edith Jones. But he ended up choosing a man of moderate temperament with a short judicial record, and now a woman of moderate temperament who has no judicial record at all.
As Miers began meeting with senators yesterday, liberals worried that Bush had chosen another stealth conservative, and conservatives worried that he had chosen a stealth moderate.
One thing was clear, however: The president is trying to avoid an open fight over abortion rights, affirmative action, and other divisive issues.
''This is a hunkered-down appointment, in my opinion," said Boston University presidential historian Michael Corgan. ''Bush is on the defensive on a lot of fronts these days, so they put out someone without a lot of things for people to fight over."
The continued struggle in Iraq and the scramble to improve the federal response to Hurricane Katrina has taken a toll on Bush's image, Corgan and others noted; the president simply could not afford a protracted battle over the Supreme Court.
He may get one anyway, since Miers's unconventional background for the Supreme Court may yet turn into a liability, if senators decide to grill her over the corporations she represented or over her sometimes rocky tenure as chairwoman of the Texas Lottery Commission.
There may be compelling reasons to welcome a Supreme Court candidate who has spent her career in front of the bench, not behind it. O'Connor, for one, was celebrated for having had more of a real-life experience before joining the court than most of her colleagues.
But few believe that Miers was nominated because of her life experiences; her lack of judicial experience seemed more a convenience of the confirmation process than an actual asset to her as a future justice.
Many grass-roots conservatives seemed to see it that way and complained to their favorite radio host that Bush was looking for an easy way to avoid a fight.
On the air yesterday, Rush Limbaugh questioned Vice President Dick Cheney, who responded to one volley by saying, ''I've sat side-by-side with [Bush] for five years and seen him take on and fight some very tough fights."
But the all-out battle between a conservative president and liberal Democratic senators over America's culture wars that so many people on both sides have predicted -- and may secretly have been wanting -- is likely to have to wait for another nomination.
