Los Angeles Times - Harriet Miers Withdraws Her Nomination to the Supreme Court

October 28, 2005
By Warren Vieth and Edwin Chen Times Staff Writers

WASHINGTON President Bush on Thursday surrendered to an embarrassingly public insurrection by conservative activists and abandoned the Supreme Court nomination of White House Counsel Harriet E. Miers.

The president and his aides tried to put the best face possible on the situation, saying Bush had "reluctantly" accepted Miers' decision to withdraw her name from consideration because of a likely clash over Senate access to sensitive White House records.

"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," Bush said in a statement.

But several sources close to the White House said the decision to withdraw the nomination was made after it became clear that resistance was stiffening among conservatives on Capitol Hill.

For example, Senate Majority Leader Bill Frist (R-Tenn.) had indicated that Miers was not gaining ground. And, with opposition from right-wing organizations continuing to grow, Republican senators were dismayed at the prospect of being forced to choose between loyalty to their president and loyalty to the conservative groups they counted on for support.

Tacitly acknowledging that the president did not want a confrontation, White House officials indicated that Bush while extremely unhappy with the setback would probably seek a Supreme Court nominee whose legal credentials and personal philosophy would command support from conservatives who found Miers wanting.

It was not immediately clear where Bush might turn for a new nominee. Among those on Bush's previous shortlist who are considered likely to pass muster with conservatives are U.S. appeals court judges J. Michael Luttig and Karen Williams of the 4th Circuit, based in Richmond, Va.; Priscilla R. Owen, Edith Brown Clement and Edith H. Jones of the 5th Circuit, in New Orleans; Michael W. McConnell of the 10th Circuit, in Denver; Samuel A. Alito Jr. of the 3rd Circuit, in Philadelphia; and Alice Batchelder of the 6th Circuit, in Cincinnati. Another possibility is Larry D. Thompson, a former deputy attorney general and now general counsel at PepsiCo Inc.

A desire to appease conservatives could jeopardize the prospects of another Bush favorite, Atty. Gen. Alberto R. Gonzales, who served as White House counsel before heading the Justice Department. Some activists have characterized Gonzales as too centrist on key issues.

Republican strategists said debate was unresolved in the White House over how to move forward. One group favored announcing a new candidate as quickly as possible to offset the political damage from the CIA leak investigation, sources said, while another faction was advocating a more deliberative process to ensure the next nominee was fully qualified and politically viable.

In seeking a new nominee, the White House is likely to be mindful that Miers was judged unacceptable by at least two elements in Bush's conservative base.

Some wanted a nominee who could be an eloquent and erudite spokesperson for their judicial philosophy. They decried what they saw as Miers' meager credentials in judicial theory and her lack of experience outside corporate law.

Social conservatives, meanwhile, complained of uncertainty about her positions on issues such as abortion and affirmative action.

Instead of making the most of his opportunity, critics said, Bush opted to reward a personal friend and loyal ally.

Miers' problems were exacerbated by what were described as unimpressive performances in mock confirmation hearings, in written responses to lawmakers' questions and in meetings with individual senators, according to knowledgeable sources who requested anonymity when discussing the issue.

That is, in addition to facing formidable opposition, Miers did not appear to be shaping up as a strong advocate of her own cause.

Miers' perceived weaknesses stood in sharp contrast with the strengths of Bush's previous nominee, John G. Roberts Jr., who was easily confirmed to succeed the late Chief Justice William H. Rehnquist. A seasoned and highly articulate Supreme Court litigator, Roberts had mastered constitutional debate. Republicans and Democrats said he gave a model performance during Senate confirmation hearings.

Miers was to have succeeded retiring Justice Sandra Day O'Connor, often the court's swing vote on controversial issues such as religion, abortion and affirmative action.

The withdrawal is the latest in a series of setbacks for Bush that include a perceived lack of progress in Iraq, a bungled government response to Hurricane Katrina and weak support for key initiatives such as restructuring Social Security.

And the withdrawal occurred on the eve of what could be an even bigger blow, as Special Prosecutor Patrick J. Fitzgerald neared completion of a 22-month investigation into the leaking of the identity of a CIA officer. He might announce today whether one or more senior White House officials will be indicted in the case.

Bush's public approval ratings have already fallen to the lowest levels since he took office in 2001, and GOP strategists fear his mounting problems may jeopardize the party's prospects in the 2006 and 2008 elections, as well as undermine the final three years of his presidency.

In a statement announcing Miers' withdrawal, Bush said that he would move "in a timely manner" to nominate another candidate for the Supreme Court opening created by O'Connor's resignation.

Bush said nothing in public Thursday about Miers' withdrawal. In the statement, he hailed Miers' qualifications for the Supreme Court but said he accepted her decision to pull out.

Bush flew to Florida on Thursday, where he toured areas affected by Hurricane Wilma. He visited Pompano Beach, north of Fort Lauderdale, and went to the National Hurricane Center in Miami.

Miers had served as White House staff secretary and deputy chief of staff before this year's appointment as the president's top attorney. Bush got to know her in Texas, where she practiced corporate law, headed a major law firm and served a two-year term on the Dallas City Council. As governor, he appointed her to run the Texas Lottery Commission. She was also his personal lawyer.

When Bush nominated her Oct. 3, his allies predicted she would attract the same kind of mainstream support as Roberts, and encounter fewer confirmation problems than some appeals court judges favored by conservatives.

Miers' withdrawal is notable because it marks one of the few instances in which Bush has been thwarted by prominent players within his political coalition. The White House underestimated conservative activists' willingness to challenge his judgment publicly.

"The radical right wing of the Republican Party killed the Harriet Miers nomination," said Senate Minority Leader Harry Reid (D-Nev.), who had encouraged Bush to nominate Miers.

Miers will resume her duties as White House counsel, Bush said in his statement Thursday. The job includes helping Bush pick a new Supreme Court nominee.

Some administration allies praised the decision by Miers and Bush to pull the plug on the nomination.

"The president needs to nominate a conservative with credentials, and that's what he's going to do," said Jay Sekulow, a conservative lawyer who has advised the White House on its judicial nominations.

A key question facing the White House is whether to nominate someone with the kind of track record sought by activists, or pick a candidate less likely to generate ideological opposition on Capitol Hill.

One GOP strategist said it appeared likely that Bush would select a proven conservative to shore up his political base.

Miers' withdrawal capped a series of behind-the-scenes consultations that started Wednesday morning and unfolded rapidly, catching many administration allies by surprise.

Officials said Miers informed Bush of her decision in a telephone call to his White House residence about 8:30 p.m. Wednesday. Twelve hours later, she walked into the Oval Office and handed him her letter withdrawing from consideration.

"I am concerned that the confirmation process presents a burden for the White House and our staff that is not in the best interest of the country," she wrote.

Aides insisted that the decision was hers alone, but they acknowledged that Bush did not try to talk her out of it. The president was "deeply disappointed," said White House Press Secretary Scott McClellan.

First Lady Laura Bush, who had publicly declared her hope that Bush would name a woman to succeed O'Connor, was also "very disappointed," according to Susan Whitson, the first lady's press secretary.

Bush, a chief executive who prizes loyalty and rarely abandons members of his team, would not have allowed Miers to withdraw if confirmation still appeared possible, a source close to the White House said, adding: "If Harriet had simply said, 'This is rough sledding, and I'm going to withdraw,' he'd say, 'No way.' "