That’s the title of my new Confirmation Tales post, in which I explore what I would rank as one of the top three episodes in the history of Supreme Court nominations over the past three decades: President George W. Bush’s nomination of his White House counsel, Harriet Miers, to replace Justice Sandra Day O’Connor. An excerpt:
If, as I have argued, Bush’s initial selection of Roberts to fill O’Connor’s vacancy provides a model of how to do the process well, his selection of Miers is a stark example of how to do the process poorly….
When the death of Chief Justice William Rehnquist in early September led Bush to renominate Roberts for Rehnquist’s seat, Bush started afresh to pick a new nominee for O’Connor’s seat. As he puts it (in his memoir Decision Points), “I felt strongly that I should replace her with a woman…. Laura agreed—and shared her views with the press.” Bush “instructed Harriet [Miers] and the search committee to draw up a new list with more women”—and to review the new candidates in the short space of two or three weeks and in the midst of the Roberts confirmation process. By Bush’s account, he ran into “frustrating roadblocks” on one female candidate after another—intense Democratic opposition to one, a husband’s financial problems on another—and before he knew it, he found himself focusing on someone who wasn’t even on the list, Miers herself….
Rather than consult with leaders of the conservative legal movement, Bush says that he received two “messages [that] came from our consultations on Capitol Hill”: “think about picking a lawyer from outside the bench,” and “seriously consider” Miers, whom “several senators had been very impressed by … as she shepherded John Roberts through his interviews on Capitol Hill.”
The only plausible reasons that Bush would pay any attention to these “messages” is that they enabled him to satisfy his strong predilection for picking a woman and, at the same time, to reward Miers. Why else would Bush credit the notion that he should pick “a lawyer from outside the bench,” when his own team of senior advisers, in compiling the original list of candidates that consisted entirely of judges, had sensibly determined that a high-quality judicial track record is the best indicator of a high-quality candidate? Why else would he think that the fact that “several senators” were said to have “been very impressed by” Miers “as she shepherded John Roberts through his interviews on Capitol Hill” was probative of anything significant?
Bush doesn’t say who these “messages” came from. But Karl Rove (in his own memoir) states that “Senate Democratic leader Harry Reid told Bush he would support Miers and felt other Democrats would as well.” Reid’s own spokesman would confirm that Reid had “urged” Bush to consider Miers. In a Senate with 55 Republicans—a Senate that had just confirmed Roberts by a margin of 78 to 22—Bush seems to have been more interested in securing an easy confirmation for a close friend than in selecting the best available candidate.
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