President Bush nominates White House counsel Harriet Miers to replace Sandra Day O'Connor, please pray
Articles / In The News
Date: Oct 03, 2005 - 01:48 PM
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President Bush nominates White House counsel Harriet Miers to replace Sandra Day O'Connor, please pray.
President Bush’s nomination of his White House counsel Harriet Miers to the Supreme Court to replace Justice Sandra Day O’Connor fits the pattern that other presidents have sometimes followed: choosing a close friend and political factotum to serve on the high court.
Franklin D. Roosevelt chose his friend and Attorney General Robert Jackson and his poker buddy and SEC chief William O. Douglas to serve on the high court. Abraham Lincoln chose his friend and political strategist David Davis, who'd helped him win the presidency. And Lyndon Johnson chose his attorney, and longtime adviser Abe Fortas.
Now Bush has picked a woman who for years has served as his personal attorney and as a White House official.
Floated last week, the idea that Bush might nominate Miers to the high court did not spark immediate enthusiasm from one conservative legal scholar, John Eastman of the Center for Constitutional Jurisprudence at the Claremont Institute in Claremont, Calif.
If he wants to give her judicial experience why doesn't he nominate her to the Fifth Circuit (Court of Appeals)?" asked Eastman in exasperation last Thursday. Eastman is a former law clerk to Justice Clarence Thomas.
Only minutes after Bush appeared at the White House Monday to announce the nomination, Manuel Miranda, a conservative strategist and former aide to Senate Majority Leader Bill Frist issued a scathing statement: "The reaction of many conservatives today will be that the president has made possibly the most unqualified choice since Abe Fortas, who had been the president's lawyer. The nomination of a nominee with no judicial record is a significant failure for the advisers that the White House gathered around it."
While cautioning that "the president deserves the benefit of a doubt," Miranda added, "Something has been left unachieved by the Miers nomination. A Republican president has yet to erase the stigma of the (1987) Robert Bork hearings and the David Souter nomination. The nomination of Harriet Miers has not rid us of the repugnant situation that a jurist with a clear and distinguished record will not be nominated for higher service. The nomination did not rid us of the apprehension of stealth nominees."
Bush replacing O'Connor with a conservative such as Thomas or Justice Antonin Scalia would inevitably push the court to the right. That’s exactly what the Left fears — and what the Right hopes for. But it is hardly clear whether Miers will be another Thomas or Scalia.
An historic gamble
This nomination is an historic gamble by a president whom his Democratic adversaries see as gravely weakened because it risks alienating the conservative base to whom Bush has long promised a genuinely conservative nominee, along the lines of Thomas and Scalia.
Is Miers a "safe" choice? Perhaps, in the sense that her record, at least at first glance, does not give the Democrats a clear ideological target. Her views on abortion, gay rights and the death penalty may not be deeply held and, for now, remain unknown.
And even stalwart liberal Democratic senators have remarked over the past few months that they like and respect Miers, but they usually voiced their praise in terms of how quickly she returned their phone calls.
One thing that is documented is Miers's political contributions. Miers has donated thousands of dollars to Republican candidates during the past 15 years, including to President Bush's campaigns. But in 1988, Miers contributed $1,000 to Al Gore's campaign for the Democractic presidential nomination. She also donated to the Democratic National Committee in 1988 and to Sen. Lloyd Bentsen, a Texas Democrat, in 1987, according to the Federal Election Commission and the Center for Responsive Politics.
Better than any opinion poll, focus group or pundit’s insight, the vote on this nominee will tell exactly how strong Bush is.
And at first blush it appears Bush was reluctant to confront Democratic senators with a nominee, such as federal appeals court Michael Luttig, who has a proven record of judicial conservatism.
Some Democratic strategists have been convinced for some time that Bush would not opt for a safe "consensus" pick.
Ed Kilgore, vice president of the Democratic Leadership Council, said, “To an extent unparalleled in American history, George W. Bush has made the reshaping of the Supreme Court a central part of his agenda and a huge part of his legacy to the conservative movement.”
Kilgore calls Bush’s Supreme Court nominations "a giant balloon payment on a 30-year mortgage that the Republican Party took out with the cultural Right. Social conservatives have allowed Republicans to refinance that deal many times, to miss a lot of payments — but now it’s finally due. This is an absolute requirement that George W. Bush satisfy them that there’s going to be fundamental revolution in constitutional law from his Supreme Court nominees.”
The president is being pulled in opposite directions, by his Democratic foes and his Republican allies.
Sen. Charles Schumer, D-NY., the Democratic leader on judicial nominees, said last week after the Senate voted 78 to 22 to confirm John Roberts as chief justice that Bush is in a weakened position due to the war in Iraq, high gasoline prices and Hurricane Katrina.
“The president and the Republican Party are not in as strong a shape today as when they made the first nomination,” Schumer said. “More than before, the American people want a consensus nominee,” he said.
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President Bush nominates White House counsel Harriet Miers to replace Sandra Day O'Connor, please pray.
President Bush’s nomination of his White House counsel Harriet Miers to the Supreme Court to replace Justice Sandra Day O’Connor fits the pattern that other presidents have sometimes followed: choosing a close friend and political factotum to serve on the high court.
Franklin D. Roosevelt chose his friend and Attorney General Robert Jackson and his poker buddy and SEC chief William O. Douglas to serve on the high court. Abraham Lincoln chose his friend and political strategist David Davis, who'd helped him win the presidency. And Lyndon Johnson chose his attorney, and longtime adviser Abe Fortas.
Now Bush has picked a woman who for years has served as his personal attorney and as a White House official.
Floated last week, the idea that Bush might nominate Miers to the high court did not spark immediate enthusiasm from one conservative legal scholar, John Eastman of the Center for Constitutional Jurisprudence at the Claremont Institute in Claremont, Calif.
If he wants to give her judicial experience why doesn't he nominate her to the Fifth Circuit (Court of Appeals)?" asked Eastman in exasperation last Thursday. Eastman is a former law clerk to Justice Clarence Thomas.
Only minutes after Bush appeared at the White House Monday to announce the nomination, Manuel Miranda, a conservative strategist and former aide to Senate Majority Leader Bill Frist issued a scathing statement: "The reaction of many conservatives today will be that the president has made possibly the most unqualified choice since Abe Fortas, who had been the president's lawyer. The nomination of a nominee with no judicial record is a significant failure for the advisers that the White House gathered around it."
While cautioning that "the president deserves the benefit of a doubt," Miranda added, "Something has been left unachieved by the Miers nomination. A Republican president has yet to erase the stigma of the (1987) Robert Bork hearings and the David Souter nomination. The nomination of Harriet Miers has not rid us of the repugnant situation that a jurist with a clear and distinguished record will not be nominated for higher service. The nomination did not rid us of the apprehension of stealth nominees."
Bush replacing O'Connor with a conservative such as Thomas or Justice Antonin Scalia would inevitably push the court to the right. That’s exactly what the Left fears — and what the Right hopes for. But it is hardly clear whether Miers will be another Thomas or Scalia.
An historic gamble
This nomination is an historic gamble by a president whom his Democratic adversaries see as gravely weakened because it risks alienating the conservative base to whom Bush has long promised a genuinely conservative nominee, along the lines of Thomas and Scalia.
Is Miers a "safe" choice? Perhaps, in the sense that her record, at least at first glance, does not give the Democrats a clear ideological target. Her views on abortion, gay rights and the death penalty may not be deeply held and, for now, remain unknown.
And even stalwart liberal Democratic senators have remarked over the past few months that they like and respect Miers, but they usually voiced their praise in terms of how quickly she returned their phone calls.
One thing that is documented is Miers's political contributions. Miers has donated thousands of dollars to Republican candidates during the past 15 years, including to President Bush's campaigns. But in 1988, Miers contributed $1,000 to Al Gore's campaign for the Democractic presidential nomination. She also donated to the Democratic National Committee in 1988 and to Sen. Lloyd Bentsen, a Texas Democrat, in 1987, according to the Federal Election Commission and the Center for Responsive Politics.
Better than any opinion poll, focus group or pundit’s insight, the vote on this nominee will tell exactly how strong Bush is.
And at first blush it appears Bush was reluctant to confront Democratic senators with a nominee, such as federal appeals court Michael Luttig, who has a proven record of judicial conservatism.
Some Democratic strategists have been convinced for some time that Bush would not opt for a safe "consensus" pick.
Ed Kilgore, vice president of the Democratic Leadership Council, said, “To an extent unparalleled in American history, George W. Bush has made the reshaping of the Supreme Court a central part of his agenda and a huge part of his legacy to the conservative movement.”
Kilgore calls Bush’s Supreme Court nominations "a giant balloon payment on a 30-year mortgage that the Republican Party took out with the cultural Right. Social conservatives have allowed Republicans to refinance that deal many times, to miss a lot of payments — but now it’s finally due. This is an absolute requirement that George W. Bush satisfy them that there’s going to be fundamental revolution in constitutional law from his Supreme Court nominees.”
The president is being pulled in opposite directions, by his Democratic foes and his Republican allies.
Sen. Charles Schumer, D-NY., the Democratic leader on judicial nominees, said last week after the Senate voted 78 to 22 to confirm John Roberts as chief justice that Bush is in a weakened position due to the war in Iraq, high gasoline prices and Hurricane Katrina.
“The president and the Republican Party are not in as strong a shape today as when they made the first nomination,” Schumer said. “More than before, the American people want a consensus nominee,” he said.
Need for a 'consensus' pick?
Therefore, Schumer reasoned, the president had little choice but to nominate a “consensus nominee,” which for Schumer and his allies means not someone who has voiced criticism of the 1973 Roe v. Wade abortion decision.
Reminded of the case of another weakened president, Herbert Hoover in 1932, who was forced by Senate bosses and opinion in the legal community to nominate Benjamin Cardozo — not his first choice — to a vacancy on the court, Schumer said he knew the story well and even knew the punch line.
When Hoover handed his list of potential nominees, listed in descending order of preference, with Cardozo's name at the bottom, to a key Senate power broker, the senator replied, “Your list is all right, but you handed it to me upside down.”
One could argue that Bush 2005 isn’t Hoover 1932 and that the 22 Senate Democrats who voted for Roberts (Blanche Lincoln of Arkansas, Kent Conrad of North Dakota, et al.) don’t see things as Schumer does.
But Judiciary Committee Democrats are determined to find out more about Miers than they did about John Roberts, or if she has views like those of Scalia and Thomas, to block the nominee, by means of a filibuster, if necessary.
Senate Republicans might respond to such a move by voting to abolish judicial filibusters. Walter Dellinger, a leading Democratic lawyer and former top official in the Justice Department in the Clinton administration, has raised the specter of an "illegitimate" confirmation.
Last week, before Bush announced Miers, Dellinger said, “I am quite worried that we may be headed for a train wreck, if someone were nominated who would provoke a filibuster” and then the Senate voted to ban judicial filibusters.
“I would hate to see us enter a legitimacy debate about whether a justice was properly confirmed or not… with reverberations back to the 2000 election. That would be a most unfortunate train wreck,” Dellinger added.
It remains to be seen whether such threats from the Democrats intimidated Bush into choosing a non-ideological nominee or whether Miers will turn out to be a committed judicial conservative in the mold of Thomas and Scalia.
Moving the court to the right
Pulling at Bush from the opposite end of the spectrum are social conservatives who helped him twice win the White House.
A leader of the conservatives in the Senate, Kansas Sen. Sam Brownback said Thursday that he expected Democrats to filibuster any nominee Bush submitted "unless the person has written extensively in support of Roe v. Wade.”
The Kansan urged the president to not be timid: “The president won the election. He campaigned on this. People know where we stand on this and they agree.”
Brownback laid down his own marker Thursday saying that from the new nominee, “I would very much like a greater assurance on an openness to reviewing Roe” than he’d heard from Roberts during his hearing.
And, for Brownback, “reviewing” Roe v. Wade means eventually curtailing or overturning it.
Critical of Roe v. Wade
Among the judges who have written harshly about Roe v. Wade is Edith Jones, an appeals court judge on the Fifth Circuit in Dallas. Last year Jones approvingly quoted Justice White who had called Roe’s companion case Doe v. Bolton, an “exercise of raw judicial power.”
But Bush chose Miers, not Jones — perhaps precisely because Miers never has written as harshly about Roe V Wade as Jones has.
Often overlooked but perhaps the decisive factor in the end are the eight Republican senators who voted in 2003 for a Senate resolution that said Roe. v. Wade should not be overturned. If Bush's nominee alienates those GOP senators by a too-explicit criticism of Roe, then they might vote with the Democrats to defeat him/her. No filibuster would be needed in that case.
Trying to outmaneuver those on either end of the ideological spectrum is the Judiciary Committee chairman. Sen. Arlen Specter, R-Pa., complained last week about Democratic “so-called political activists” who are spoiling for a fight.
Specter said that confirmation of the next justice should be about more than “restoring enthusiasm among rank-and-file among the left.”
Asked about some senators’ desire for “another O’Connor," Specter replied, “I’d prefer to talk in terms of trying to match Judge Roberts. He is a hard act to follow. Maybe the next one won’t be a 100 on the Roberts scale, maybe a 98 and a half.”
The drama of the next few months will hinge on that question: is Miers a 98 and a half on the Roberts scale, or, if not, is she solid enough to win confirmation?
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