NPR - A Look at the Withdrawal of the Nomination of Harriet Miers

October 27, 2005
National Public Radio

Harriet Miers - What Went Wrong

NEAL CONAN, host:

This is special coverage from NPR News. I'm Neal Conan in Washington.

The official explanation of Harriet Miers' withdrawal is the irreconcilable conflict between the Senate's demand for documents covering her service as White House counsel and executive privilege, the president's right to consult his lawyer in confidence. Few will believe it. Harriet Miers' nomination to the Supreme Court faltered at the start and never gained momentum. In a statement issued at the White House today, President Bush accepted Miers' withdrawal with reluctance. This hour we'll find out what went wrong and why, explore the political price of this failure for President Bush and look ahead to the possibilities for the next nominee and, in the meantime, at a Supreme Court which still includes Sandra Day O'Connor.

We begin with NPR's national political correspondent Mara Liasson and with David Savage, who covers the Supreme Court for the Los Angeles Times. They're both with us here in the studio.

Thanks very much for coming in.

MARA LIASSON reporting:

Thanks for having us.

Mr. DAVID SAVAGE (Supreme Court Reporter, Los Angeles Times): Hi, Neal.

CONAN: Mara, we know that Harriet Miers' loyalty to President Bush was one of the reasons he nominated her in the first place. Was loyalty the reason she withdrew?

LIASSON: Well, yes, you could put it that way. Her nomination had become a big political problem for the president. Now we don't know exactly how it worked. Did she come to him and say, 'I think I'm going to withdraw,' and he said, 'Oh, no, no, Harriet. Please stay,' and she said, 'No, I insist'? We don't know about that. But it had become a political problem for him. She is getting nothing but praise from conservatives who opposed her nomination, saying basically she did the right thing, that she did the right thing for the president, and, you know, I guess in terms of whether he's politically hurt by her withdrawal, I think that he probably is in the short term, to some extent. It was Senator Specter who said that--when he was asked if Miers would withdraw, he said, 'Absolutely not. I think that would be a sign of incredible weakness.' So Democrats will certainly try to paint it that way and make it look like he was a captive of his right-wing base who had rebelled against the Miers nomination. But he lanced a political boil today.

CONAN: David Savage, let's turn to you. There's been a great deal of swirl today around this story. Briefly remind us--and I guess, as you were pointing out to me just before the program, this is the third time that President Bush will have an opportunity to name a replacement for Sandra Day O'Connor.

LIASSON: (Laughs)

Mr. SAVAGE: Yes. In mid-July he was faced with this choice and picked John Roberts. It turned out to be a very good pick, but as you recall, Chief Justice Rehnquist died over the Labor Day weekend, and he switched the Roberts nomination to be chief justice. Now we're sort of back where he was stuck in September. At the end of September, we sort of thought he must know who he's going to pick. And then Roberts was confirmed, and the White House said--put out some statements saying, 'Actually, there's not an ideal choice this time. And the president's going to go up to Camp David and think about it over the weekend.'

And I think they thought that Harriet Miers was sort of the safe pick because you had somebody like Al Gonzales, the attorney general, would be the first Hispanic nominee, but the right-wing groups said, 'We're adamantly opposed to him. He's too moderate. He's like an O'Connor. He's in the middle of the road on affirmative action and on abortion.' There were a series of very conservative nominees and the Democrats said, 'If you pick one of them, it's an all-out war. There's going to be a filibuster fight.' Andy Card leaked the name of Harriet Miers a few days before.

CONAN: The White House chief of staff, Andrew Card.

Mr. SAVAGE: Yes. And no one took that seriously. No one took it seriously; it was just a name, and so there was no opposition voiced to Harriet Miers. So they had a--the president had a situation where he knew he was going to have a big fight if he went one way. He knew he was going to have a big fight if he went another way, and then there was Harriet Miers that no one opposed.

LIASSON: I think David is making a really good point. I remember talking to conservatives in that trial-balloon phase of Miers and they were saying, 'Oh, he's not going to pick Harriet Miers.' That was inconceivable to them. They just didn't take it seriously because they felt, of course, there were so many well-qualified conservative candidates for him to choose from. But I think that they did think this was perfect, someone who is conservative they felt they knew but had no paper trail at all. As it turned out, she had a paper trail, and the paper trail that she had--these speeches and writings and various things--was not helpful to her. So the vetting process, such as it was in the White House, didn't really work, and this is, I think, a problem when you nominate someone that you feel you know so very well for so many years.

Mr. SAVAGE: Well, Mara, remember, she was in charge of the vetting process. That's another problem, to pick somebody who's in charge of the vetting process.

LIASSON: Well, her deputy, actually, was supposed to have vetted her, but yeah.

Mr. SAVAGE: And I think what happens in a situation like that, there's no memo in the files that says: Here's the downside of this nominee.

LIASSON: Right.

Mr. SAVAGE: ...because it's the person in charge of the process. There was no--when they were considering vice presidents, there was nothing in the files that said: Here's the problem if you pick Dick Cheney. Dick Cheney was in charge of the process. Anyway, so they picked somebody who they thought was a safe pick, would not cause a lot of controversy, and from the very beginning, a lot of conservatives, including these people like David Frum, who worked in the White House--from the very beginning, said, 'This woman, she's a very nice woman, but she's not up to the standards of the Supreme Court.' Everything we learned about her in the month after that sort of reaffirmed that impression.

LIASSON: I don't think they were completely caught unawares that there would be problems with her on the right. They knew there were going to be some. They didn't understand the extent of it. And apparently, what I've heard is that Karl Rove did warn the president, 'You're going to take a lot of heat on this,' but they felt that with the message she's an evangelical, they could smooth over some of this, and it didn't work.

CONAN: And that backfired, too; people saying, 'Look, you were arguing a couple of months ago that John Roberts' religion was irrelevant to his appointment. How can Harriet Miers' religion suddenly be relevant?'

LIASSON: Yeah, and this really--just from a political standpoint, this was an amazing moment for the Republican Party. President Bush had assembled this unbelievably disciplined and unified coalition behind him, and even when conservatives of different stripes, whether they were social conservatives or economic conservatives or small-government types--even if they had problems with individual policies that he was promoting, they swallowed all those disagreements, they stuck together for this moment, for the moment when they could achieve their greatest priority, which was moving the Court to the right. And it all started to fall apart with the Miers nomination, and I don't know to what extent it comes back together. I think he has a chance to repair some of the breach.

CONAN: Mm-hmm. Well, let's find out a little bit about how deep that breach is. Joining us now is Jay Sekulow, chief counsel for the American Center for Law and Justice. He joins us now by phone from Nashville, Tennessee.

Jay, good to speak with you again.

Mr. JAY SEKULOW (Chief Counsel, American Center for Law and Justice): Hi. Thanks for having me.

CONAN: And Jay Sekulow was a supporter of the Harriet Miers nomination, but what do you think happened to it?

Mr. SEKULOW: Well, I think it was a confluence of a couple of different things, actually, one of which was--clearly this issue over the documents was going to be a roadblock, a hurdle, if you will, that I don't think she could have gotten over, and that is the Senate, both Republicans and Democrats, wanted some more information about who she is. They thought the documents would be the best way to get that, and of course, the president said on Monday, and understandably so, that he was going to claim executive privilege on those, which makes sense, so I think that presented hurdle one. Hurdle two was--and I think this is just the timing of everything--it wasn't clicking on Capitol Hill. You know, you always look at the political ramifications of things, and I think it just--the sense was, they wanted a lot more information. They weren't going to get the kind of information they wanted because of the sensitive role she's played, and so things on the Hill were not going particularly well. And I think the last thing is, the fact that you had a split within the conservative party certainly didn't help anything.

CONAN: And where did that split come from? It seemed like a lot of social conservatives were, in fact, in favor of the Miers nomination.

Mr. SEKULOW: Yeah. That's an interesting dynamic here, and you're absolutely correct. Social conservatives were, in fact, lining up in support of Harriet Miers and had from, really, the first day. I worked with her at the White House counsel's office and saw how she was involved in the judicial selection process. So I was always very comfortable with her. But there were other conservatives that were not, and I think that split really maybe put into focus this general disagreement that was going on that ultimately played itself out at the Senate.

CONAN: And what Mara was talking about was that moment where the president of the United States, a two-term Republican president of the United States, said, 'Trust me. Let's go,' and a lot of people said, 'Wait a minute.'

Mr. SEKULOW: Well, that's right, and there was--because they didn't know who she was. And then, as the process unfolded, they weren't getting enough information, they felt, to make the kind of big decision that you make when you're doing advice and consent, and I think the White House then realized, probably realistically over the weekend and yesterday--through yesterday, that this was a significant obstacle, and...

CONAN: And given this, do you think that the previous feeling amongst conservatives can ever be recaptured?

Mr. SEKULOW: I think it can. I think the president's going to. I think a couple things are going to happen here. One is the president's, I think, going to pick a judicial conservative that has a known judicial philosophy, and that means probably an appellate court judge. So that's number one. I think you're going to see that. Number two, they'll have a record, so there's not going to be guessing. And I think once you have that and the president comes out with a conservative nominee, a former--you know, someone who's a current Court of Appeals judge, I think the answer is that they will coalesce behind them, and you'll see a lot of unity for the candidate.

CONAN: Well, let's hear another voice on this. Joining us now from his home here in Washington is a former speechwriter for President Bush and a critic of the Harriet Miers appointment. David Frum is with us.

Nice of you to join us today.

Mr. DAVID FRUM (Former Bush Speechwriter): Thank you.

CONAN: And I know that you, in a blog you write for the National Review Online, said today the system worked. How so?

Mr. FRUM: I think the president has met--I think there's not been a president who's gone through eight years without making a single mistake, not even George Washington. This president is not going to break the trend. He made a mistake. He corrected it. And I completely agree with--if it's Jay Sekulow you're talking to, I think I recognize the voice...

CONAN: Yes, it is.

Mr. FRUM: ...I completely agree with what he just said. I think that there's going to be now a rallying of conservatives around the president. I think he's going to make a good next choice, and I think that next choice is going to get through the Senate and you're going to see a united Republican Party facing the challenges ahead.

CONAN: Yet, David, to be fair, there were some nasty things that were said, some of them about you, and I wonder, is this taken personally? Are grudges held?

Mr. FRUM: I can't speak for anybody else. I know things--a lot was at stake. It was an intense fight. Emotions ran high, but I think, you know, for myself, I understand, you know, people--if you're not prepared to have people say nasty things about you, you shouldn't live inside the Washington city limits, and I think the results are results we can be proud of.

CONAN: Jay Sekulow, on the other side, there are going to be some people at the White House who are going to be a little less trustful of their conservative allies.

Mr. SEKULOW: I actually don't think that's right. I think what David said is correct, and that is the president's going to pick a known conservative. Now he saw that picking someone that wasn't known--although he knew Harriet Miers, the country did not and, more importantly, the Senate Judiciary Committee did not. And I think the president's going to do the right thing here and that is, as you look at the list now of potential nominees--and only the White House has that, only the president knows for sure--I think you're going to see a known judicial conservative. I would hope that now you'd see people like Priscilla Owen, Janice Rogers Brown, Mike Luttig, Sam Alito, people that have served on the bench so that there's not--we don't have an internal disagreement.

And I don't think it really--I never felt it got ugly. I mean, we're friends and we disagree, but I think that you will see the conservative side come together when the nominee is announced, because I believe the president's going to appoint a conservative judicial nominee. And it's probably not going to be somebody from the White House or from the Justice Department, because I think that is just an obstacle you can't cross right now.

CONAN: We're going to have to ask you both to hang on the line for just a moment, and we'll also be asking you both more about those prospective nominees for the appointment now. We'll also be talking not just with Jay Sekulow of the American Center for Law and Justice and with David Frum, former beach--Bush speechwriter who now rights a blog for National Review Online, but also with NPR's Mara Liasson and with David Savage of the Los Angeles Times.

You're listening to special coverage from NPR News. I'm Neal Conan in Washington.

(Soundbite of music)

CONAN: This is special coverage from NPR News. I'm Neal Conan in Washington.

Harriet Miers has asked President Bush to withdraw her nomination to the Supreme Court. The president reluctantly accepted her suggestion. In a statement the president said, 'Miers' decision demonstrates her deep respect for this essential aspect of the constitutional separation of powers and confirms my deep respect and admiration for her.'

NPR's Mara Liasson and David Savage of the Los Angeles Times are here with us in Studio 3A. We'll be back with them in just a moment. We'll also be hearing in a few minutes from Senator Sam Brownback, but we want to finish our conversation with Jay Sekulow, chief counsel for the American Center for Law and Justice, and David Frum, a former speechwriter for President Bush and a critic of the Miers nomination.

And just before the break, David Frum, Jay Sekulow was speculating about some potential nominees, people who might be on the short list this time around. Tell me, are there people on the list that we've all seen who are--you would believe would be unacceptable?

Mr. FRUM: I think most of the names that are out there are names that people will--that conservatives will support. There are some other names I could probably add to Jay's list. I think one name that I think the president will want to consider pretty seriously is Michael McConnell...

Mr. SEKULOW: Absolutely.

Mr. FRUM: ...who is a jurist who is very well-regarded by religious conservatives, well-regarded by members of the Federalist Society, well-liked in Congress, broad support. I think, you know, one of the things--when I said the system worked, the two most recent Supreme Court nominations, Stephen Breyer for the Democrats, John Roberts for the Republicans, these are both--Breyer's a strong liberal, Roberts a strong conservative. Both are men of intellectual distinction, and both of them got thorough the Senate with considerable votes from the other party, from people who disagreed with their views but said, 'You know, sometimes the Democrats win, sometimes the Republicans win. When that happens, each gets to make their choice. Just pick your best.' And I think we need to go in that model, that--the kind of conservative judge that Stephen Breyer was as a liberal judge, that John Roberts is, and there are at least a dozen of those people, men and women.

CONAN: Mm-hmm. What about the one name that we have heard, that of the current attorney general of the United States, Alberto Gonzales?

Mr. FRUM: Well, as Jay says, it's extremely--it's hard to imagine that he...

Mr. SEKULOW: I can't imagine.

Mr. FRUM: ...would pick him, if only for this: One of the things this president has to be very concerned about is upholding executive power. You know, we've got a lot of important war-on-terror decisions, you know. The court--and this may be close. You want a nine-member Supreme Court, not an eight-member Supreme Court with the attorney general recusing himself. I don't think that's going to happen.

CONAN: What about another name that's been thrown into the mix, that--a member of the Senate Judiciary Committee, John Cornyn, Republican of Texas?

Mr. SEKULOW: Well, a very bright guy, and I had the privilege of arguing a case with him. We were on the same side of the case at the Supreme Court of the United States, and he served as the Texas attorney general. He's been a US senator and, of course, he was also a Supreme Court justice in Texas. So he certainly has the background. So I think he would certainly be within that list of people that the president would consider, and you are hearing his name mentioned. But I think if the president decides to go with the Mike McConnells, the Mike Luttigs, the Sam Alitos, the Janice Rogers Brown and Priscilla Owen, you've got a known quantity there and a known entity, and--although John Cornyn, I think, would be very, very good as well, and as David just said, there's probably 10 others we can name to the list that would be fine. And I think--General Gonzales is the attorney general of the United States, and if you thought difficulty of the document issue with Harriet Miers was significant, just add to that the attorney general who was former White House counsel. I mean, it just would seem to me unsurpassable.

CONAN: Let me ask you, David Frum, there are some of those names at least that you both have mentioned that would trigger intense opposition from the Democratic Party. Is the prospect of a filibuster fight something that the president and conservatives and Republicans should shy away from at this moment?

Mr. FRUM: Well, look, one of the things that people say is that conservatives are spoiling for a fight. I just don't believe it. I don't think conservatives wanted a great debate. I think they wanted a great justice. And I think John Roberts shows, and Stephen Breyer, too, that this--putting people on the Supreme Court does not have to be an all-out ideological war, that in the Senate, there's a lot of respect for excellence and there's a lot of respect for elections. I mean, if Republicans win an election and they win the majority of the Senate, they get to pick a Supreme Court judge if a vacancy comes up. And Democrats respect that, just as Republicans did with Stephen Breyer.

And I think one of the things we also saw with Roberts is that filibuster deal held. I mean, if you put on--if you name somebody who's serving on an appellate court of the United States, the Democrats have said they will only filibuster if a person is in extraordinary circumstances. By definition, an appeals court judge or a professor at a distinguished law school--something like that--that's--it's impossible to imagine that anybody can see that as being an extremist or extraordinary choice.

Mr. SEKULOW: Especially in light of the fact that some of the ones we've named were part of the compromise that was worked with Lindsey Graham and others. They were specifically included in that. So to now say there's an extraordinary circumstance, that whoops, it's not the Court of Appeals; it's the Supreme Court, I just don't think that would fly, and I don't think they can mount a filibuster challenge based on that.

CONAN: David Frum, we know you have to leave us. We thank you for your time today.

Mr. FRUM: Thank you very much.

CONAN: David Frum is a former speechwriter for President Bush and now writes a blog for National Review Online and is a fellow at the American Enterprise Institute. He joined us from his home here in Washington, DC.

Jay Sekulow, let me follow up with you with one more question, and that is: As this goes forward, again, you thought at one time when Harriet Miers' questionnaire came out about her support for Right to Life, that conservatives would then realign behind her. That didn't happen. She never gained any particular support in the United States Senate or in the public for that matter, if that matters. But the fact of the matter is, there is still a split in the conservative movement, isn't there?

Mr. SEKULOW: Well, there is and I think what you just said is absolutely correct, and it's the latter, the split in the Senate, because at the end of the day, what I say and David says--we don't vote. But she didn't get--garner the support of the Senate, and there was perhaps a multitude of reasons there. And so you never saw that coalescing that was necessary to move this forward, and I think that reality started coming into play. Having said that, I really do believe that the president goes to a known conservative, you're going to see bygones be bygones and a very organized effort on behalf of conservatives to get that nominee confirmed.

CONAN: Jay Sekulow, thank you very much...

Mr. SEKULOW: Thank you for having me.

CONAN: ...for speaking with us today. We know you're in a hurry to get away as well.

Mr. SEKULOW: Thank you.

CONAN: Jay Sekulow is chief counsel for the American Center for Law and Justice, and he joined us by phone from Nashville, Tennessee.