Photo from the Associated Press
Bye bye Harriet
When specific outcomes matter
October 30, 2005
Harriet Miers’ request that President Bush withdraw her nomination to the Supreme Court signaled a bittersweet victory for the wingnut crowd. On the one hand, they successfully defeated the nomination of a person they believed lacked a credible and coherent record of originalist constitutional interpretation. On the other hand, they embarrassed their once beloved President and his personal lawyer. Of course, the White House did its best to save as much face as possible, but no one should believe the reasons that Miers and Bush gave for the withdrawal of her nomination.
MYTH: The Miers nomination was abandoned in defense of the executive branch
As you know, members of the Senate have indicated their intention to seek documents about my service in the White House in order to judge whether to support me. I have been informed repeatedly that in lieu of records, I would be expected to testify about my service in the White House to demonstrate my experience and judicial philosophy.
I have steadfastly maintained that the independence of the executive Branch be preserved and its confidential documents and information not be released to further a confirmation process. I feel compelled to adhere to this position, especially related to my own nomination. Protection of the prerogatives of the Executive Branch and continued pursuit of my confirmation are in tension. I have decided that seeking my confirmation should yield.
Text of Mier’s Letter to President Bush, 10/27/05, Washington Post
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.
Harriet Miers' decision demonstrates her deep respect for this essential aspect of the Constitutional separation of powers.
REALITY
According to Miers and President Bush: Bush and future presidents should be able to operate with the confidence that they can speak freely, openly, and confidentially with the White House Counsel. Senate requests for documents relating to these conversations constitute an infringement of the legislative branch on the executive branch. Since the Senate cannot be persuaded to refrain from requesting White House documents or asking questions pertaining to White House conversations, Miers was forced to withdraw her name from consideration.
It is true that the President should, indeed be able to operate with the confidence that he can speak freely, openly, and confidentially with his White House Counsel. Logically, it would follow that the President should think twice about nominating his White House Counsel as the next Supreme Court Associate Justice, especially when her limited legal experience is such that her views on constitutional interpretation cannot be divined from any other sources.
It's is extremely hard to imagine that the White House did not anticipate this problem before deciding to nominate Miers. Bush must have known that, in the absence of any other information on which to base an evaluation of Miers’ fitness for the Supreme Court, Senators would require these privileged White House documents, and yet he went ahead with the nomination anyway. In fact, Bush’s press secretary, Scott McClellan, acknowledged yesterday that the document requests came as no surprise: “And senators had made it clear that she would be required to cross those lines in the confirmation process, given her different and unique record that she has and the fact that she does not have a judicial record or other substantial public writings, opinions or briefs on constitutional matters.” Boy, Rove's brain must have been rather pre-occupied.
Secondly, weeks ago, John Roberts was confirmed despite the White House’s refusal to release many of documents he produced while serving as White House Counsel for Reagan and George H.W. Bush. The Administration tried to make the case that the Senate is more bullish in its requests for the Miers documents than it was for the Roberts documents, but this claim is unfounded.
In reality, the fuss about separation of powers is a smokescreen to obscure the real reasons behind the nomination’s failure. One wonders if the White House read last Friday’s Washington Post and prepared their exit strategy accordingly. In an opinion editorial on October 21, 2005, Charles Krauthammer argued that the White House could use the documents dispute as a justification for accepting Miers’ withdrawal request. According to Krauthammer:
“Finally, a way out: irreconcilable differences over documents.
For a nominee who, unlike John Roberts, has practically no record on constitutional issues, such documentation is essential for the Senate to judge her thinking and legal acumen. But there is no way that any president would release this kind of information -- "policy documents" and "legal analysis" -- from such a close confidante. It would forever undermine the ability of any president to get unguarded advice.
That creates a classic conflict, not of personality, not of competence, not of ideology, but of simple constitutional prerogatives: The Senate cannot confirm her unless it has this information. And the White House cannot allow release of this information lest it jeopardize executive privilege.
Hence the perfectly honorable way to solve the conundrum: Miers withdraws out of respect for both the Senate and the executive's prerogatives, the Senate expresses appreciation for this gracious acknowledgment of its needs and responsibilities, and the White House accepts her decision with the deepest regret and with gratitude for Miers's putting preservation of executive prerogative above personal ambition.
Faces saved. And we start again.”
Incredible. Krauthammer’s “hypothetical” scenario is eerily similar to what actually happened.
The main reason for the nomination’s failure, of course, is the wingnut faction's unprecedented campaign against their own party leader’s nominee. The volume of anti-Harriet Miers literature in the wingnut media was staggering. Here’s a sample:
"This George Bush, like his father, is showing himself to be indifferent, if not actively hostile, to conservative values."
-- Paul Chesser, “Vetting Ahead of Ourselves,” American Spectator, 10/25/05
“The White House considers it relevant to tell us Miers' religious beliefs, her hobbies, her hopes and dreams. She's a good bowler! A stickler for detail! Great dancer! Makes her own clothes!”
Using a more grassroots approach, David Frum of the National Review circulated a petition for the withdrawal of Miers’ nomination that gathered thousands of signatures. Conservatives on television, radio and print were virtually united in their antipathy for Miers. The result was a president who had lost his base and was desperate to regain it. His progress towards that goal will ultimately be determined, in large measure, by his next nominee for the court.
However, now that the Harriet Miers saga comes to a close, there is another aspect of this story that will probably be forgotten by some, and never revealed to most. Although it’s clear that right-wing opposition was the primary factor that derailed the nomination, there is substantial evidence that the White House was eager to avoid the Miers confirmation process to sidestep further revelations of the Administration’s culture of corruption.
Given that James Dobson’s endorsement of Harriet Miers was based on confidential conversations with the Administration regarding Miers’ views on abortion, the revelation that Texas Supreme Court Justice Nathan Hecht and U.S. District Judge Ed Kinkeade “flatly predicted that their friend Miers would rule against Roe vs. Wade” raises further questions about whether or not Miers and/or the White House made promises regarding future potential court cases to win support for the nomination, which of course, would compromise Miers’ judicial independence and due process of law. For an Administration that steadfastly defended Roberts’ right to evade any and all substantive questions about past court cases, they were remarkably cavalier about giving assurances on future court cases.
The other scandal that understandably frightened the administration dates back to Miers’ days serving as Chairman of the Texas Lottery Commission, a position she held from 1995 to 2000. In 1998, former Lottery Commission Executive Director, Lawrence Littwin, sued GTECH, the Commission’s main contractor, for encouraging Harriet Miers to fire him. According to Littwin, GTECH was allowed to keep its contract with the Lottery Commission in exchange for former Texas House Speaker Ben Barnes’ silence about his involvement in protecting President Bush from service in the Vietnam War by getting him into the Texas National Guard. At the time, Barnes served as a GTECH lobbyist so his silence about a potentially embarrassing issue for a presidential candidate yielded a personal financial windfall. GTECH and Barnes deny any improprieties, but GTECH settled out of court with Littwin.
Of course, now that the Bush Administration has withdrawn Harriet Miers’ nomination, the president will not have to answer more uncomfortable questions about his military background, nor will he have to account for the unethical manner in which his supporters attempted to market her nomination to the conservative base. Conservatives can continue to use terms like "originalist", "strict constructionist", and the like as smokescreens for specific desire outcomes, such as overturning Roe V. Wade and various anti-gay laws. And after Bush nominates Samuel Alito, they can all embrace and live happily ever after
