Harriet Miers took a terrible beating — most of it from conservatives, including a fair share from National Review – when President Bush nominated her to a place on the Supreme Court. Today few, if any, of those critics have any regrets; after Miers withdrew under fire, they got Justice Samuel Alito, whom conservatives view, along with Chief Justice John Roberts, as part of a wildly successful one-two series of high Court nominations.
Despite that success, it’s fair to say that some of Miers’s conservative critics prefer not to crow about the matter, because that would involve more criticism of the President Bush for picking Miers in the first place. Better to just be quiet. And that is why now, a day after Miers resigned her position as White House counsel — effective at the end of this month — few in her party are willing to publicly join in any further bashing. But among a substantial number of Republicans on Capitol Hill, there is a strong and heartfelt reaction to Miers’s impending departure: They are very, very glad she’s leaving.
“We’re all pretty happy,” says one. “Happy as clams,” says another.
The main reason for Miers’s departure is that the White House does not believe she can handle the coming legal fights with the new Democratic majorities in the House and Senate, as committee chairmen demand documents and testimony on the war in Iraq and a broad range of other issues. But the reason many conservatives are glad to see Miers leave is her handling of judicial nominations.
Although there are some individual cases where Miers has drawn conservative disapproval — for example, they blame her for the choice of Debra Livingston, whom conservatives found unimpressive, to the Second Circuit Court of Appeals — the larger objection to Miers has been over the White House’s general approach to nominations, especially in 2006. Miers, the critics say, positioned herself as an advocate of diversity — as opposed to sheer legal firepower — in nominees. In addition, the White House simply did not show much interest in the judges issue for much of the last year, so much so that last summer several Republicans on the Judiciary Committee sent the White House a letter asking for action on a number of judicial vacancies. As the lead staff member dealing with nominees, Miers got much of the blame.
The White House nomination slowdown last year was a risky course of action in light of the approaching midterm elections. If Democrats were to win control of the Senate, nominations that might have been confirmed with the 55-seat Republican majority in 2006 would languish in a Democratic Judiciary Committee. The White House would be back to the situation that existed in 2001 and 2002, when majority Democrats stopped half of the president’s appeals-courts nominees.
Now that reality has arrived, and conservatives long for a stronger White House stand on judges. They know that the White House can undoubtedly win confirmation for its nominees, if it picks nominees who aren’t conservative. “That was our worry about Miers,” says the first Republican quoted in this article. “If she picked two-thirds good guys and one-third mediocrities or liberals, then those would be the ones [committee chairman Patrick] Leahy would let through — so that would make the federal bench worse.”
Now, the worry is about who is next. Conservatives feared that might be current deputy White House counsel William Kelley, a champion of the Miers Supreme Court nomination who, it is thought, would continue a Miers-like administration of the counsel’s office. But there is word the new counsel will come from outside the White House — not because the administration wants to change course on judges but because it is looking for a strong figure to handle the anticipated blizzard of subpoenas.
Lost in much of the talk on Capitol Hill, however, is the blame that Senate Republicans deserve for the situation. Some of the president’s nominees did not make it through the Senate because of Republican opposition, not Democratic obstruction or White House passivity. And now, in a few cases at least, there is regret. “What the hell happened?” asks one Republican. “How is it that we didn’t move [Fourth Circuit nominee] Terry Boyle in four years of Republican control of the U.S. Senate?”
Whatever the answer, the plain fact is that from now on it will be extremely difficult, if not impossible, to win confirmation for solid conservative nominees to the federal courts of appeals. Democrats blocked many of the president’s choices when he was new in office and had a high post-9/11 approval rating. What will they do now that he is a lame duck with a rating in the 30s? In addition, the function of the White House counsel’s office is about to change as the president assembles a legal team to deal with all those Democratic demands. There’s no indication that nominations will be a top priority.
So in retrospect, Republicans may look at the year just past, and the performance of Harriet Miers as White House counsel, with growing regret. An opportunity was lost, and it won’t be coming back anytime soon.
– Byron York, NR’s White House correspondent, is the author of the book The Vast Left Wing Conspiracy: The Untold Story of How Democratic Operatives, Eccentric Billionaires, Liberal Activists, and Assorted Celebrities Tried to Bring Down a President — and Why They’ll Try Even Harder Next Time.