Wednesday, October 5, 2005

Senior Bush adviser Karl Rove was “very involved” in President Bush’s Supreme Court nomination of Harriet Miers, who was selected in part because she has no judicial track record, according to a Republican with close ties to the administration.

“We know that Rove was very involved in the process, and he’s certainly well tuned in to the Hill and how it works,” said GOP strategist Charlie Black. “I suspect the Senate leadership might have given him the advice to take into consideration on how hard or how easy someone would be to confirm.”

The White House was seeking a confirmable justice to replace Sandra Day O’Connor, even if its decision to name a nominee with no paper trail limited the talent pool, said David Schultz, a professor in Minnesota’s Hamline University’s law school and author of “The Encyclopedia of the Supreme Court.”

“There are no great justices anymore, because since [Judge Robert H.] Bork, they are not confirmable,” he said, referring to President Reagan’s Supreme Court nominee who was rejected by a Democratic Senate. “We have opted for average candidates who will not make or break any new ground. They are confirmable.”

In his two nominations to the high court, Mr. Bush has selected a well-regarded litigator with conservative credentials but fewer than two years on a federal appeals court, and a career lawyer who is member of his inner circle but has never been a judge.

The lack of a judicial track record was considered by top political advisers in the White House — including Chief of Staff Andrew H. Card Jr., Vice President Dick Cheney, Cheney Chief of Staff I. Lewis “Scooter” Libby and Mr. Rove. When the list of candidates was pared to five or six, the group “started considering how confirmable they would be,” Mr. Black said.

James Hamilton, who served as the Clinton-Gore transition counsel for nominations and confirmations and as a principal Clinton White House adviser for Supreme Court nominations, said the lack of a paper trail made Miss Miers, current White House counsel, an attractive pick in the current climate.

Mr. Bush himself suggested that there is an advantage in a nominee with no judicial paper trail because “there’s not a lot of opinions for people to look at.”

But that void, he acknowledged, has also led to concern from both sides of the aisle on Capitol Hill.

“I recognize that if you pick somebody from outside the judicial system — in other words, you pick somebody that’s not a judge and they didn’t — hadn’t written a lot of opinions — then people are going to guess, and they’re going to speculate,” Mr. Bush said during a Rose Garden press conference.

That advantage has played out in the first 48 hours since Miss Miers’ nomination. Pro-choice groups have mostly held their fire, while expressing concern over the nominee’s lack of a specific record on key issues. No ads have run on television condemning the nominee, because liberal advocacy groups have been spent two days trying to establish Miss Miers’ record and discern her views.

But unlike the nomination of Chief Justice John G. Roberts Jr., which invigorated a united conservative core, Miss Miers has split Republicans. Leading conservatives have savaged the selection of Miss Miers, whose only political experience was a two-year stint on the Dallas City Council.

Still, the nomination has won praise from the Senate’s top Democrat, who had urged Mr. Bush to pick someone from outside the judicial community and specifically recommended Miss Miers.

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