Miers Gets Criticisms Rare for Nominees to Court





On Oct. 22, 1971, President Richard M. Nixon nominated to the Supreme Court a corporate lawyer and former bar association president with no judicial experience. On Dec. 6, his choice, Lewis F. Powell Jr., was confirmed with fanfare by a vote of 89 to 1.

Harriet E. Miers, President Bush's nominee to succeed Justice Sandra Day O'Connor, brings a similar résumé, along with five years in the White House and one year as its counsel. But in just three weeks, her nomination has provoked a range of opposition that some scholars say may have no modern precedent.

"I would be very hard pressed to think of a good historical analogy," Richard Baker, the Senate historian, said. "I don't think there is one."

Though past nominees have faced swift opposition, what makes Ms. Miers's nomination extraordinary, historians say, is the combination of doubts about her philosophy from within the president's own party and attacks on her legal qualifications from both sides of the aisle.

"Harriet Miers is in a real danger zone," said Lee Epstein, a political scientist at Washington University in St. Louis who uses statistical models to study public perceptions of past Supreme Court nominees. "Our models right now are showing that she would get confirmed, but I would be worried if I was the president," she said. The early calls for withdrawal, the "intraparty attacks" and the questions about her qualifications, Ms. Epstein said, are what make Ms. Miers's nomination "reasonably unique."

Ms. Miers is not the first nominee to confront ideological opposition from within her own party. Republicans objected so much to President Ulysses S. Grant's 1874 nomination of Caleb Cushing, a former attorney general and a respected lawyer, that it was withdrawn after four days, said Professor Richard D. Friedman of the University of Michigan Law School. Republicans also complained about President Herbert Hoover's 1932 nomination of the eminent jurist Benjamin Cardozo. Others choices for the court - President Franklin Roosevelt's 1937 nomination of Justice Hugo Black, a former senator who never finished high school, or Mr. Nixon's 1970 nomination of G. Harrold Carswell - have faced doubts about their qualifications.

But several historians said that they could not think of a nominee who had drawn so much criticism from both parties so quickly."I have to sympathize with this woman," said Sheldon Goldman of the University of Massachusetts, noting the similarity with Justice Powell's résumé.

"The difference in treatment that she has received has been absolutely stunning," Mr. Goldman said.



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