Bench Memos

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Miers and the White House’s Judicial Selection Committee


I had hoped by now to have a clear (if necessarily provisional) position on the Miers nomination, but I don’t. Part of the difficulty is sorting through the incomplete or conflicting accounts of various aspects of her record. So in the meantime I may offer some thoughts on sorting through those accounts.

Let’s begin with Hugh Hewitt’s account of Karl Rove’s discussion of Miers’s work on judicial selection:

She has been a member of the White House’s judicial selection committee for three years, not the one I had thought …. Every judicial nomination the president has made for the past three years has come through this committee. Prior to the discussion in the committee, every nominee’s work is assembled and analyzed, and interviews are conducted by the committee members. The briefing books are prepared by the junior staff which is made up of all the sort of lawyers you’d expect, with all the right law schools and clerkships. The committee pores over the binders and then meets and debates the candidates, and a recommendation is made to the president. Rove described her role as detailed and deep, including as it did for all committee members the careful examination, analysis and discussion of candidates’ opinions and writings.

Miers’ participation in this process for three years presents opponents of her nomination with more than just a question of how the president’s nominees reflect on Miers’ –and the committee’s judgment. More importantly, her participation in the process described discredits any idea that her core philosophy is unknown to the president or other senior aides. It defies common sense to imagine three years of such meetings leaving other senior staff and the president in the dark about her commitment to originalism.

This account is at least modestly encouraging–if, that is, it is accurate. But I have been given serious reason to believe that Hewitt’s account dramatically (though, I would presume, inadvertently) overstates Miers’s actual participation in the work of the judicial selection committee while she was deputy chief of staff. I don’t know the facts here, but it would be good if the White House would present them directly. For starters: How many meetings of the judicial selection committee occurred during the time Miers was deputy chief of staff, and how many of these meetings did she attend?


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