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Religion, Abortion Issues Could Be Prominent at Miers Hearings

Religion, politics and the controversial issue of abortion are all likely topics when Senate confirmation hearings begin on November 7 for Harriet Miers, President Bush's choice to replace retiring Supreme Court Justice Sandra Day O'Connor.

There is some doubt about the Miers nomination in large part because some conservative leaders who normally support the president are unsure about her legal positions.

Mr. Bush has been trying to calm those conservative voices of concern, arguing that she is qualified because of her extensive experience as a lawyer and that Ms. Miers shares his view that judges should interpret the law, not make it.

"Harriet will answer all of the questions asked," he said. "But out of this will come a clear picture of a competent, strong, capable woman who shares the same judicial philosophy that I share."

A number of Democrats and some Republicans question her qualifications for the high court. It is not a requirement that Supreme Court justices have judicial experience, though many have served on lower courts throughout history.

Ms. Miers' lack of a record on deciding cases will be an area of focus for opposition Democrats on the Senate Judiciary Committee, the panel that holds the confirmation hearings.

New York Democrat Charles Schumer, who is among those to question Ms. Miers said "Harriet Miers has to make clear to the American people her judicial philosophy, her ideology, on a whole range of constitutional issues," said the member of the Judiciary Committee.

Some Republicans on the committee are also unsure about Harriet Miers' views on a range of questions, including the divisive issue of abortion.

As a candidate for Dallas City Council in 1989, Ms. Miers indicated on a survey from an antiabortion group that she favored banning abortions except to save the life of the woman.

Kansas Republican Sam Brownback, a leading voice against abortion in the Senate, wanted the president to nominate any one of several better known conservative jurists who would have been willing to overturn the 1973 Supreme Court decision known as Roe versus Wade that legalized abortion. "Harriet Miers does not have that track record and does not seem to be well-formed in her judicial philosophy, having never been on the bench," he said.

Senator Brownback is an example of Republicans who have won election to Congress in recent years by emphasizing conservative views on social issues.

Many of these politicians rely on strong support from Evangelical Christians who oppose abortion and homosexual marriage.

President Bush has tried to reassure some of these conservatives by pointing out Ms. Miers is a devout Christian.

In addition, former colleagues of hers like Texas Judge Nathan Hecht have also said they believe Ms. Miers opposes abortion. "Oh, we probably talked about it some. But I think [because of] her commitment to the church and just what I know about her, she is pro-life [anti-abortion]," he said.

Six of the nine current Supreme Court justices, including Justice O'Connor, support abortion rights. Even if her replacement turns out to oppose abortion, there would still be a narrow five to four majority on the court in favor of abortion rights.

Some Republicans complained when Democrats questioned Chief Justice John Roberts about his religious views during his recent confirmation hearings.

Now at least a few Republicans fear they will be seen as hypocritical if they emphasize Harriet Miers devotion to her faith.

"She certainly is a churchgoer but she is not making that a qualification," said Senator Kay Bailey Hutchison, a Republican from Texas and a long time colleague of Harriet Miers. "And it is not a qualification. Her qualifications are in the legal field and they are eminent."

Some conservatives are also wary of Ms. Miers because they have been disappointed with Supreme Court justices appointed by previous Republican presidents who turned out to be more liberal than expected once on the court.

Conservatives point to the example of Justice David Souter, appointed to the court by the president's father, President George H.W. Bush. Justice Souter has turned out to be a reliable vote for the nine-member court's more liberal bloc.

"It is quite interesting to think about the number of times presidents have been deeply disappointed by the voting behavior of a justice they put on the Supreme Court," said A.E. Dick Howard, a constitutional law expert at the University of Virginia. "One has to realize that there is such a thing as judicial independence. The third [judicial] branch is independent of the other two [executive and legislative]."

While Republicans focus on whether Ms. Miers is a worthy conservative, opposition Democrats could decide to try and block her confirmation if they believe she is too conservative to replace Justice Sandra Day O'Connor, the leading moderate on the court.