Rising stakes for Miers hearing

After the initial shock and awe over her nomination, the outcome of Harriet Miers's bid to join the Supreme Court now depends on how many Senate Republicans join conservative critics determined to bring her down.

The White House had expected a small army of conservative groups to provide covering fire for nominees as they charged through the Senate. But many are now missing in action or outright hostile, because they doubt the nominee's legal and conservative credentials.

The result is that Ms. Miers is now going it alone, making her testimony at next month's Judiciary Committee hearings even more important.

Senators who by this time in the confirmation cycle had announced support for Chief Justice John Roberts say they are withholding judgment until they evaluate her performance at the hearings.

Just a half-dozen Senate Republicans voting "no" could derail President Bush's nomination. But some observers say that Democrats, fearing a more conservative replacement if Miers were defeated, could ultimately lend her their support.

"The great irony is that she might be saved by Democratic votes," says Jonathan Turley, a law professor at George Washington University.

While President Bush may have lost some conservative allies in Washington, he is still counting on an ability to rally his base to influence key Senate votes. That strategy is already unfolding in New Hampshire, site of the first presidential primary vote.

At the urging of the White House, several leading New Hampshire conservatives launched a campaign to get senators who are considered 2008 presidential hopefuls on record in support of a fair up-or-down vote for Miers.

"She's a born-again Christian, owns a handgun, and headed the Texas Bar Association. I have a hard time understanding why this is a bad thing," says Ed Naile, chairman of the Coalition of New Hampshire Taxpayers.

Some of these presidential hopefuls making frequent visits to the state, such as Sen. Sam Brownback (R) of Kansas, are also among those who have expressed the most reservations about Miers. "If they don't pay attention to what conservative Republicans think in New Hampshire, that's a foolish decision," says Mr. Naile.

In Washington, the Republican National Committee is encouraging state party leaders to write op-eds in support of Miers. Last week, RNC chairman Ken Mehlman held a conference call with more than 30 bloggers to build grass-roots support for the nominee.

"The rush to judgment on Miers from the president's allies has been striking. Not only has it been immediate and widespread, it also has been - in many cases - extraordinarily immoderate," wrote Ronald Cass, dean emeritus of Boston University School of Law and co-chairman of the Committee for Justice, writing for the website RealClear Politics, which is widely read by conservative activists.

In the Senate, some Republicans say that President Bush's nomination of his White House lawyer to replace Justice Sandra Day O'Connor is tainted by cronyism and that Miers is not qualified.

One of the few Republicans in the Senate to openly back Miers, Sen. John Cornyn (R) of Texas, is urging his colleagues to hold their fire until they see her responses at confirmation hearings. Many have not. Former Senate majority leader Trent Lott (R) of Mississippi told MSNBC's "Hardball" that he was "not comfortable" with the nominee and that Miers was clearly not the most qualified person.

Although pressed by the White House to commit to the nominee, most Republicans on the Senate Judiciary Committee are holding back. "Harriet Miers is a very different nominee to the Supreme Court than was John Roberts. Most senators don't quite know what to think of her," wrote Sen. Jon Kyl in a "diary entry" for the Arizona Republican, after meeting with Miers.

Senator Brownback, also a member of the Judiciary Committee, says she needs to be clear on the issues of the day, especially the right to privacy and abortion.

"Like many others, I have a lot of questions and some concerns, quite frankly, with the Harriet Miers nomination," said Sen. David Vitter (R) of Louisiana, in a statement on Tuesday.

For Democrats, the hostility to the nominee on the right opens up an unexpected opportunity to deny President Bush a victory, but at the risk that the next nominee could be further to the right. Should the Miers nomination go forward, it could also leave the GOP base fractured going into 2006 midterm elections - and possibly handing control of the House or Senate back to Democrats.

"Ultimately, this will depend on Harriet Miers. She may be just as good as George Bush says she is, but she's going to have to prove it. Nobody is going to take George Bush's word on it," says David Keene, chairman of the American Conservative Union.

Excerpts from the Senate Judiciary Committee questionnaire that Harriet Miers completed, released Wednesday:

Q: Please describe your experience in the ... judicial selection process.

A: When Justice Sandra Day O'Connor first announced her desire to retire, I was asked whether my name should be considered. I indicated ... that I did not want to be considered.

Q: Did you make any representations to any individuals or interest groups as to how you might rule as a Justice if confirmed?

A: No.

Q: Please discuss your views [of] 'judicial activism.'

A: While its role and its independence are essential to the proper functioning of our tripartite system of government, the courts cannot be the solution to society's ills, and the independence of the courts provides no license for them to be freewheeling. And, of course, parties should not be able to establish social policy through court action, having failed to persuade the legislative branch or the executive branch of the wisdom and correctness of their preferred course.... "Judicial activism" can occur when a judge ignores the principles of precedent and stare decisis.... Mere disagreement with a result is insufficient to justify ignoring applicable precedent, but reconsideration under appropriate circumstances is also necessary.