By Jeff Mullin Commentary



"Two roads diverged in a wood, and I, I took the one less traveled by, and that has made all the difference." -- Robert Frost.



President Bush, in his decision to nominate Harriet Miers to the Supreme Court, has emulated the words of Frost and taken the road less traveled.

Miers, Bush's White House counsel, has never been a judge and thus has left behind no trail of rulings that would peg her as a conservative or a, gasp, liberal.

Her nomination has fostered a great hue and cry among Bush's conservative allies, who have done everything but accuse the president of lying to them when he promised to promote the conservative agenda.

Ever since the openings created by the resignation of Justice Sandra Day O'Connor and death of Chief Justice William Rehnquist, Republicans have been preparing for a knockdown, drag-out battle over the president's choices. After all, the aforementioned Mr. Frost also wrote, "Isn't it funny that anything the Supreme Court says is right?"

New Chief Justice John Roberts' nomination process was a relative cakewalk, meaning the president's next choice would undoubtedly trigger an ideological donnybrook.

And thus it has, but this fight is pitting Republican against Republican, with the Democrats standing on the sidelines looking mildly amused.

Former presidential candidate and conservative commentator Pat Buchanan said, "Bush capitulated to the diversity-mongers (and) used a critical Supreme Court seat to reward a crony."

Sen. George Allen, R-Va., said he doesn't "want to be part of picking another Souter," a reference to Justice David Souter, a nominee of the first President George Bush who has frequently voted to uphold abortion rights.

Conservative talk show host Rush Limbaugh called Miers' nomination "disappointing," and said it was "a pick made from weakness."

James Dobson, founder of Focus On the Family, initially endorsed Miers, but now is having second thoughts. He's afraid Miers' confirmation "could do something to hurt the cause of Christ."

On the other hand, Miers has picked up some surprising allies from the other side of the aisle.

Senate Democratic Leader Harry Reid said "The Supreme Court would benefit from the addition of a justice who has real experience as a practicing lawyer."

Democratic Sen. Barbara Mikulski, D-Md., is reserving judgment on Miers, but chided the right for what she called the "sexism and double standard," conservatives' criticism of the nominee has engendered.

The crux of the matter seems to be the great unknown. Democrats are supporting Miers, or are at least lukewarm on her nomination, because they don't know where she stands on hot-button social issues like abortion and gay rights. Conservative Republicans are dead set against her for the same reasons.

Miers is a great unknown. We don't know whether she favors or abhors Roe V. Wade. We don't know whether she will interpret the Constitution literally, or more fluidly.

The thing that disturbs me about Miers is that, since she has never been a judge, she has never had to put herself in a position where she was not an advocate for one position or another, but had to rule on the merits of a case based strictly on the law and the evidence.

According to those who know her, Harriet Miers is a fine lawyer and one tough lady. Whether or not that will make her a good justice, only time and the confirmation process will tell.

But such leading lights of past courts as Louis Brandeis, Felix Frankfurter, William O. Douglas, Earl Warren, Byron White and William Rehnquist have ascended to the nation's highest court with no experience as judges.

As the confirmation process proceeds, Miers should be judged on her ability to be impartial, rather than on the basis of her support of or disdain for a particular issue.



Mullin is senior writer of the News -- Eagle.



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