Why Harriet Went Down
Facing growing questions from senators and calls from conservatives for a beleaguered President Bush to drop her nomination, White House Counsel Harriet Miers withdrew her name from Supreme Court consideration Wednesday evening.
Miers' nomination process -- which went as roughly as that for Chief Justice John Roberts went smoothly -- was marked by several clashes with Senate Judiciary Committee Chairman Arlen Specter, R-Pa., anger from conservatives who felt Bush betrayed them by not nominating someone with a lengthy conservative record and charges that Miers' main qualification for the court was her friendship with Bush. Still, Miers' decision surprised a city on edge as it waits for word on possible indictments of administration officials stemming from the outing of CIA agent Valerie Plame.
In announcing her withdrawal, Bush pointed the finger at senators who wanted information from Miers about her five years in his administration. "It is clear that senators would not be satisfied until they gained access to internal documents concerning advice provided during her tenure at the White House -- disclosures that would undermine a president's ability to receive candid counsel," Bush said.
But Specter undercut that argument when he said the committee wanted to know the issues on which Miers advised Bush - not necessarily the advice itself. The reality is that Miers would likely have faced a hard time being confirmed by the Senate and endured tough questioning from members of the Judiciary Committee, which was scheduled to start nomination hearings Nov. 7 -- coming at a time when Bush has little political capital to spend.
Bush pledged to name another nominee "in a timely manner" and, given his low public approval numbers, will likely avoid a fight with his conservative base by nominating a candidate who pleases core supporters. Senate Majority Leader Bill Frist, R-Tenn., said Thursday that he looks forward to a nominee who "is committed to upholding the Constitution and who believes in the limited role of a judge to interpret the law and not legislate from the bench."
Depending on Bush's timetable, the Senate could take up the next nomination before it adjourns for the year; the chamber is expected to be in session past Frist's Thanksgiving target date anyway to deal with other issues.
Miers's problems began shortly after Bush named her earlier this month to succeed Sandra Day O'Connor, the court's first female associate justice and who has pledged to remain on the court until her successor is confirmed. Well-known conservatives such as Bill Kristol, David Frum and George Will attacked her on television and in newspaper columns. A website citing conservative criticism of her, withdrawmiers.org, called for Miers to step aside, and television ads paid for by Americans for Better Justice, whose board includes Frum, began airing this week on Fox News, with the line, "Even the best leaders make mistakes."
Democrats found themselves in the unusual role of staying almost quiet throughout the nomination process, letting Republicans take the lead in attacking her. "The radical right wing of the Republican Party killed the Harriet Miers nomination," Senate Minority Leader Harry Reid, D-Nev., said Thursday. But he warned that in choosing another candidate, Bush "should reject the demands of a few extremists and choose a justice who will protect the constitutional rights of all Americans."
Part of the trouble, though, was Miers herself. She performed unimpressively in her private meetings with senators, many of whom emerged unenthusiastic about her candidacy. Most problematic was her meeting with Specter, during which he later said she indicated her support for Griswold v. Connecticut, a key Supreme Court case that helped pave the way for Roe v. Wade. After Miers called him to say that wasn't the case, Specter said he accepted her recollection but stood by his original remarks. His frustration over the episode showed when he said there would be no misunderstandings during her confirmation hearings because there would be cameras present.
The second run-in with Specter came when Miers provided answers to the Judiciary Committee questionnaire that Specter described as "insufficient" and Ranking Member Patrick Leahy, D-Vt., said he had heard called "incomplete to insulting." The senators then asked Miers some follow-up questions, but her answers had not arrived yesterday when they were due, according to Congressional Quarterly. Specter snidely suggested that the court nominee needed a "crash course in constitutional law."
Additionally, both Republicans and Democrats appeared confused as to what Miers' positions on issues were. Sen. Charles Schumer, D-N.Y., noted Wednesday that Miers said in 1989 she would support a constitutional amendment prohibiting abortion except when a mother's life is at risk. But three years later, she gave $1,000 to the Democratic National Committee, and a year after that, she talked about using "self-determination" when dealing with moral issues, such as abortion.
"The $64,000 question remains: Who is Harriet Miers?" Schumer asked.
The White House wasn't able to answer that question, shifting messages several times in trying to gain traction for her candidacy. Administration officials first talked about her role as a friend and adviser to Bush, then as an evangelical and lastly about her qualifications, bringing members of the Texas Supreme Court to the White House to bolster her credentials. But by that time, there was doubt about Miers' intellectual heft for the job, including the release of memos she wrote that demonstrated an almost rock-star admiration of Bush, whom she called "cool" and the "best governor ever."
Even though none of the White House strategies seemed to work, Bush remained determined to push Miers, and said he reluctantly accepted her withdrawal. The decision is a blow for Bush at a time when he faces increasing pressure over the mounting U.S. death toll in Iraq and continued criticism about federal response to hurricanes as well as frustration over rising gas prices. But the chance to nominate another candidate -- of whom his base approves -- could give Bush time to regain his footing and change the court's balance as part of his legacy.
If Bush nominates a known conservative, the battle for O'Connor's seat will likely align along more traditional Republican-Democratic lines, with interest groups on both sides of the aisle spending millions of dollars in coming months. Progress for America, a conservative group that backed both Roberts and Miers, pledged to support Bush's next nominee.
Sen. Trent Lott, R-Miss. suggested on CNN Thursday that Bush find another candidate like Roberts, "who is so qualified, and conservative, that even Democrats would say so." Roberts was an appellate court judge who had argued 39 cases before the court (Miers had never been a judge) and was confirmed with 78 votes.
It is not known whether Bush will choose another woman to fill the O'Connor seat. First lady Laura Bush, among others, had pressed him to do so before he named Miers. Another unknown is whether Bush will turn to someone from his inner circle, such as Attorney General Alberto Gonzales, revisit some of the nominees he passed over earlier this year, or start from scratch. Just 34 of the 154 nominees to the Supreme Court have not been confirmed from 1789 to 2004, according to a Congressional Research Service report released in March.
As Leahy noted in a statement Thursday, Bush's next choice will be his third to fill the O'Connor seat; Roberts was initially named for the associate justice seat before being promoted to chief justice following William Rehnquist's death. Anxious to care for her ailing husband, O'Connor may the person in Washington most anxious for the confirmation battle to be over. "All Americans appreciate O'Connor's willingness to continue her service long past when she had intended to retire from the court," Leahy said.