The Two Knocks on Miers

By NANCY GIBBS

Among the rarest honors that President Bush bestows is induction into the Hundred Degree Club. Its members are the aides who have managed to keep up with him running a dusty three-mile course at his Crawford, Texas, ranch when the temperature is above 100DEG. It's certainly one way to get to know someone's heart, or at least his heart rate. Harriet Miers, 60, Bush's former personal lawyer, then loyal White House aide, was one of the few women to spend time clearing cedar with Bush on the ranch and pacing him on his runs, and over the years he got to know her well enough that he was sure she would help him avoid his father's fate. Presidents, especially those named Bush, must not appoint Supreme Court judges who, once robed for life, turn out to be squishy moderates. "No more Souters" was the right's rallying cry, so when he said he knew her well, knew her heart, knew she wouldn't change, he thought conservatives would be delighted.

Imagine, then, watching what came next, as she was declared a mediocrity, a crony, "the least qualified choice since Caligula named his horse to the Senate." There was such venom in the attacks that you had to remind yourself that unlike in past court dramas--the slaying of Robert Bork or Richard Nixon's ill-fated henchman G. Harrold Carswell--this was not just about her; it was about him, about Bush's promises and the dream of a permanent conservative revolution. Of all the things a President ever does, this is the one that lasts: he picks the jurists who will chisel and polish the Constitution in ways that can affect citizens for generations. After 11 years had passed with no vacancies, Bush was given two in two months, with a 55-member majority in the Senate and a Democratic opposition that has no clue how to stop him.

And whom does he pick? The right, at least the conservative intellectual right, didn't care about her heart as much as her other muscles, her constitutional brilliance, her persuasive powers, her ability to walk into all that marble and make some history. It had its sacred short list of seasoned legal warriors who would take back the Constitution once and for all. But neither John Roberts, a legal star whom the President scarcely knew before last summer, nor the loyal Miers offers the kind of ideological pedigree that conservatives could count on. And for once they were not prepared to take Bush's word that it would all turn out O.K., that they should just trust him. Bush was showing "stunning arrogance," declared Ann Coulter, to think he could just pick anyone he liked. "The President is not supposed to be nominating his personal lawyer for a job on the United States Supreme Court," she said. "You don't have your personal accountant replace Alan Greenspan. It's embarrassing to hear people describe this as if this is the best woman Bush could get." Veteran conservative activist Paul Weyrich saw insult in the assumption that Bush's followers wouldn't dare question his choice. "They are so used to conservatives falling in line, rolling over and playing dead--that's what they expected," he said.

Now the anger and ironies wrap around each other. By picking someone he knew so well, Bush hoped to avoid making the kind of miscalculation his father had made with David Souter, yet now he stands accused of doing just that. And by avoiding a costly fight with the left, Bush gets one with the right. Conservatives find themselves struggling with whether they really want to whack their President when he's already down and go on the record opposing a devout Evangelical whom he trusts completely. Fight him and lose, and they prove how powerless they are to affect much of anything that counts; swallow hard and fall in line, and what good is their access anyway? By contrast, the Democrats--looking smug and convinced they have dodged a bullet with Miers' selection--actually had it easy. Senate minority leader Harry Reid boasted that he had recommended Miers in his chats with Bush, while most Dems just stayed quiet, letting the Republicans eat their young.

As for Miers herself, what did the critics know about her that made them so hostile--and what did they not know that made them so anxious? She is described as a private person who misses nothing. "A pit bull in size 6 shoes," Bush called her. Likes chocolate. Remembers birthdays. Works fiendishly hard. Engaged once but never married. Plays a mean game of tennis. Takes lots of notes. Makes coffee for the Sunday school. Gave money to Al Gore's 1988 presidential campaign. Launched a women's-studies lecture series at her alma mater. In the absence of a paper trail, with almost no law-journal articles and relatively few case filings to scour, the fight came down to two main issues: competence and character. "Just shut up for a few minutes," advised Senator Lindsey Graham to the critics after he met with Miers on Capitol Hill. "Give the lady a chance, to find out who she is."

o THE EXPERIENCE ISSUE

There are 1,104,766 lawyers in the U.S., give or take, of whom nine at a time make it to the Supreme Court. Getting there is like being in exactly the right place in a field during a thunderstorm. "You can get yourself clumped together with the right crowd under a very small tree on a very big meadow," says a law professor who has followed friends through the process. "But then it's all about where the lightning strikes."

In Miers' case, being in the right place meant being a Texan who crossed paths with George W. Bush at a gala dinner in 1989 and eventually turned to follow him. A math major at Southern Methodist University (she was one year ahead of Laura Bush at S.M.U.), she dreamed of being a doctor but didn't think she was smart enough and didn't encounter enough people to tell her otherwise. Her turn toward the law had a very personal trigger: it was a lawyer who helped her family navigate the challenges of her father's shattering stroke. She saw the good that the law could do, and its power, and became one of nine women in a class of 143 to graduate from S.M.U. law school in 1970.

Her most direct encounter with the life of a judge came after graduating, when she clerked for two years for District Court Judge Joe Estes--in part, says a classmate, because she didn't get many good job offers. But at the end of her two years with him, Estes called a big Dallas firm then known as Locke Purnell to say it should hire her. She rose as a corporate litigator representing clients like Disney and Microsoft, and soon there was glass all over the floor wherever she walked: first female president of the firm, president of the Dallas bar, then the Texas state bar. Shy but firm, precise to a fault, "she's unfailingly graceful about the fact that she beats you," as a courtroom opponent put it.

Like 41 of the 109 Justices in American history, Miers has never been a judge. And she does not make up for that, critics say, with other valuable experience. She was never a law professor, like William Douglas; her one unremarkable term on the Dallas city council does not match Earl Warren's three terms as Governor of California or the 27 Justices who had served in Congress; she wasn't even a leading appellate lawyer, like noted L.B.J. crony nominee Abe Fortas. "This is one of the slimmest resumes in the history of the court," says Jonathan Turley, a constitutional law scholar at George Washington University who puts Miers on a par with infamous Truman cronies Harold Burton and Sherman Minton. Her defenders argue that she has valuable experience in business and practical politics. "In a big law firm," says her S.M.U. classmate Gary Rice, "it's like herding cats sometimes. She will be great at finding consensus." But, of course, that would be a problem for people who don't see consensus as a virtue.

o THE RELIABILITY QUESTION

Marvin Olasky, the sometime Bush adviser and godfather of compassionate conservatism, sees the debate over Miers as being between those who wanted an "intellectual leader" and those who want "a suffering servant" who will follow her heart. The question of who Harriet Miers really is cloaks the real concern about who she will become once she has her lifetime seat on the bench. "There is a strong tendency for Republican nominees to shift to the left when they get to the court," said Bush's former speechwriter David Frum, "and the people most vulnerable to this are those who are not fully prepared."

Miers has served Bush faithfully ever since she worked as his counsel when he ran for Governor in 1994. Once elected, he appointed her to fix the scandal-ridden Texas Lottery Commission. Her first post at the White House was staff secretary, responsible for looking over every piece of paper that crossed the President's desk. Some staff members could get frustrated with her meticulousness: she was prone, said a colleague, "to make the perfect the enemy of the good." But Bush found in her many of the qualities he prizes: loyalty, toughness, an allergy to the limelight, a fierce work ethic. When White House counsel Alberto Gonzales moved over to become Attorney General, she took his place. "She's one of those people whom I think Washington has had a hard time figuring out," says Merrie Spaeth, director of media relations in the Reagan White House, who has known Miers for 20 years. "She is incredibly smart and driven, like a Condi Rice, but she doesn't smash you in the face with it."

One of Miers' jobs as White House counsel was to judge the judges, including the search that ended with the Roberts pick. According to a presidential adviser who has been briefed on the chronology of the decision, senior adviser Karl Rove was less involved than he is in most major decisions. Some conservatives speculate that Rove was distracted or out of the loop because of his possible legal jeopardy in the CIA leak case, but White House officials reject that notion. The driving force was chief of staff Andrew H. Card Jr., who took over the vetting role. "This is something that Andy and the President cooked up," the adviser told TIME. "Andy knew it would appeal to the President because he loves appointing his own people and being supersecret and stealthy about it." Relations between Rove and Card have always been strained, and this adviser said the nomination has reignited the tension. Another Republican involved said it reflected Bush's isolation. "Somebody just like her should have told him, 'Mr. President, no. This is a mistake.' But he picked the picker, so there was no one there to tell him no."

To his skeptical conservative allies, Bush did chant the litany. "She will not legislate from the bench," he vowed. "I've known her long enough to know she's not going to change," Bush said, a code for "No more Souters." Bush may be right, but Miers got to be her resolute self after undergoing a profound change. Raised a Catholic, she was reborn an Evangelical in 1979, and it was to her spiritual credentials that her surrogates pointed in trying to reassure conservative Christians that she could be trusted. But that was not enough for activists like Janet LaRue, chief counsel for Concerned Women for America. "Jimmy Carter claims to be an Evangelical," she says, "and I wouldn't want to have him on the Supreme Court."

The people most familiar with her legal instincts did not provide much reassurance. "My theory is that she is going to be a Justice very much like Sandra Day O'Connor," says Gary Rice, in words that might cheer moderates but spook anyone looking for someone with a weed whacker who will go after liberal rulings of the past 30 years. "If she moves the law, it will be in small steps. She won't be one to say, 'Let's just throw all that out and do something different.'" One of the most intriguing insights into the Real Harriet Miers came from her longtime friend, former law partner and sometime love interest Justice Nathan Hecht, who is considered the most conservative justice on the Texas Supreme Court. "This is very important, and I don't think the public understands," he told TIME. "When you take an oath and swear that you will judge cases properly after that, you can't inject your personal views or religious faith into decisions because it would be wrong. You would either be a bad Christian or a bad judge. Religion says a lot about who you are personally, but it says nothing about stare decisis [following precedent], the commerce clause, the First Amendment, search and seizure or any of the issues she's going to deal with." All of which will surely leave some Christian activists wondering, What's the good of having the first Evangelical on the bench if she leaves her faith in the robing room?

For all the fury on the right, few Republicans on the Hill are predicting Miers will be rejected, even if a good number are hoping she will withdraw her name to stop the pounding of her President. But if she and the President stand their ground, some of her allies expect Miers to impress the Senators with her strength and savvy. "To stand one on one in the Oval Office, and for the President to turn to you and say, 'What do you recommend?' you have to be confident, prepared, articulate and smart," says Brett Kavanaugh, Miers' successor as White House staff secretary. "She's done it for five years now." Given the hostility directed toward her, Miers could now at least benefit, as her President so often has, from the advantage of low expectations. --Reported by Mike Allen, Massimo Calabresi, Matthew Cooper and Viveca Novak/ Washington, Hilary Hylton/ Austin and Sonja Steptoe/ Dallas

With reporting by Reported by Mike Allen, Massimo Calabresi, Matthew Cooper, Viveca Novak/ Washington, Hilary Hylton/ Austin, Sonja Steptoe/ Dallas