The old mis-direction play...

Miers expected to be president's terror ally
>By Caroline Daniel and Patti Waldmeir
>Published: October 15 2005 03:00 | Last updated: October 15 2005 03:00
>>

US social conservatives have one big objection to Harriet Miers, President George W. Bush's beleaguerednominee to the Supreme Court:they cannot trust her to shift America's highest court to the right on the issue of abortion.

But when it comes to defending the power of the president to wage the war on terror - even if that means making unpopular choices about the civil liberties of Americans and foreigners alike - conservatives think Ms Miers will be onside.

She is nothing if not loyal: and if she makes it on to the bench - which still seems likely despite the conservative blood-feud over her nomination - she could fundamentally alter the balance of power between the courts and the presidency on issues of war and terrorism.

Despite the social conservatives' single-minded obsession with abortion, there are many more issues at stake in the nomination of Ms Miers.

The departing Justice Sandra Day O'Connor often held the balance of power on questions of presidential power.

If she is replaced by Ms Miers, currently White House counsel - and if Ms Miers keeps fighting the president's battles on the high court - then she could end up having a bigger impact on American law and society, through her rulings on executive power, than on any social issue including abortion.

"A lot of insiders think [Mr Bush] chose her because in the war on terror she will be on his side," says Cass Sunstein, professor at the University of Chicago Law School.

If both Ms Miers and the new chief justice, John Roberts, adopt a deferential attitude to executive power, this could do much to define - and expand - the power of the American presidency, he says, noting that the scope of the president's power as commander-in-chief is "one of the huge under-explored areas of constitutional law".

The court was struggling with that issue as recently as yesterday, when the justices met to consider whether to hear one of the most important cases from the war on terror: Hamdan v Rumsfeld, which tests the legality of the military commissions set up to try suspected terrorists at Guantánamo Bay.

On Monday, they may announce whether they will hear the case, or duck it for the moment. Either way, the treatment of detainees will come before the Supreme Court again and again before the war is over.

And on that issue, Mr Bush is sure Ms Miers is behind him. On Wednesday, Ken Mehlman, chairman of the Republican National Committee, reassured restive conservative bloggers that Ms Miers believed courts should not be "micromanaging" decisions about the war on terror, but should leave them to the executive branch. Ms Miers might have to recuse herself from some of the cases in the short term if they involve issues she worked on at the White House.

Mr Roberts, the new chief justice, would have to recuse himself from the Hamdan case, since he voted in favour of the administration when that case came before him as a federal appeals court judge.

But as Mr Mehlman pointed out, according to one account of the call, the war on terror "is a generational affair", and "there will be many opportunities in the long term for [Ms Miers] to make an impact on those issues".

Justice O'Connor certainly did: she helped rein in the Bush administration last year in a decision involving "enemy combatants". Writing for the plurality, she said: "A state of war is not a blank cheque for the president when it comes to the rights of the nation's citizens."

However, Steven Shapiro, legal director of the American Civil Liberties Union (ACLU), cautions against jumping to conclusions about how Ms Miers would rule on such cases.

"We have no clue what Harriet Miers' views are on executive power - or on anything else," he says. And Jack Goldsmith, professor at Harvard Law School and a former top Justice Department official involved with terrorism issues, says merely serving in the executive branch "is not predictive of one's judicial views about executive power".

Justice Robert Jackson, for example, served as federal attorney-general under Franklin D. Roosevelt, and then wrote a famous 1952 opinion sharply limiting the president's war powers.

The new chief justice repeatedly cited this decision during his confirmation hearings, hinting that the president could not count on him to rubber-stamp every presidential whim.

But Mr Shapiro points out that deference to the executive would "dovetail with his general philosophy of judicial restraint", calling for courts to stay out of issues that can be better handled by other branches of government.

The two Bush justices may not succeed in overturning the landmark abortion ruling, Roe v Wade: they may not even want to. But they could play a crucial role in protecting - or eroding - civil liberties in the war on terror.