One Down And One To Go
Conservatives got Miers to withdraw. Now they want a nominee of their own
Harriet Miers's nomination to the U.S. Supreme Court was just days old when White House adviser and former Republican National Committee Chairman Ed Gillespie was all but booed off the podium after he told conservatives that their objections to Miers carried the stink of sexism and elitism.
His mission had been to suppress the right's uprising over President Bush's choice of his White House counsel, but instead the amiable Gillespie was pelted with epithets, threats of desertion, and charges of cronyism. "It was," said one conservative leader at the now infamous closed-door meeting, "the worst vitriol you've ever heard."
In the days that followed, things only got worse, despite--or, in some cases, because of--the administration's desperate attempts to tout Miers's evangelical Christian bona fides and its promises that she was "one of us" on issues like abortion. Miers's stumbling performance in courtesy meetings with senators didn't help things. The intraparty warfare finally reached its crescendo when Miers--whose qualifications, conservative credentials, and even hair and makeup were savaged daily--decided to call the president and ask him to withdraw her name from consideration. Protecting executive privilege was the stated reason, but everyone knew better.
Giving no ground. It was an astonishing 24 days during which the Republican right flexed its muscle, and the president capitulated. When it was over, the right proved beyond a shadow of a doubt that on judicial nominations--the issue that brought social conservatives to the polls and assured the president's re-election--it would give no ground. Not on Harriet Miers. And not on the next nominee either, even if it meant embarrassing its party's leader.
So where does this leave the weakened president, angered over the trashing of his dear friend? Will he push back at the right so he's not perceived as its puppet for the rest of his administration? Or will he shore up his base and serve up a staunch conservative, risking a donnybrook with Senate Democrats, some of whom are already raising the specter of a filibuster if a moderate is not nominated?
Emboldened conservatives aren't waiting to find out. Though they characterized Miers's withdrawal as honorable and a healing moment for the party, activists are warning the White House not to disappoint by naming another "stealth" candidate lacking judicial experience and an accompanying portfolio of conservative opinions in sync with the right's judicial aims--most notably, to overturn Roe v. Wade . Either way, the president faces a battle, they say. "If he tries to avoid a fight," says Paul Weyrich, president of the conservative Free Congress Foundation and a critic of the Miers nomination, "the president is going to have a fight--either with the liberals or with his base."
What conservatives really don't want is a Bork-Kennedy scenario: After the bruising 1987 fight over the Supreme Court nomination of Judge Robert Bork, President Reagan nominated Douglas Ginsberg, who withdrew after acknowledging past marijuana use. Worn down by partisan bickering, the White House turned to Appeals Court Judge Anthony Kennedy, who has since become a reliable moderate swing vote on the high court. To conservatives, Kennedy has been a source of enduring anger and disappointment.
Qualified. Bush is expected to act quickly--a nominee could be named early this week--and he'll probably choose from candidates already vetted in the process that led to the Miers nomination and that of Chief Justice John G. Roberts. Among those being mentioned as potential successors to Sandra Day O'Connor are conservative Appeals Court Judges Samuel Alito Jr., 55, Michael Luttig, 51, Karen J. Williams, 54, Michael McConnell, 50, and Janice Rogers Brown, 56.
Insiders say the president may not feel compelled to name a female to replace O'Connor, the first woman on the high court and one of two now serving. "The key," says Sean Rushton, executive director of the Committee for Justice, which works with the White House to promote its judicial nominees, "is to go back and get somebody with great qualifications and a clear adherence to the president's stated philosophy" without regard to gender.
In Washington, there is palpable sympathy for Miers, who broke barriers as a respected corporate lawyer in Texas. "I feel sad for Harriet Miers. She really got battered and she didn't ask for this," Weyrich said. As one of Miers's supporters, lawyer Jay Sekulow, said ruefully, "Welcome to Washington."
But the past month may just be a prelude. "It seems to me that a bloody confrontation is quite likely," says Earl Maltz, a law professor at Rutgers University. "The administration almost has to name a person with well-established conservative credentials to satisfy its base, and the Democrats almost have to filibuster such a person to satisfy theirs." The Senate battle, now twice deferred, may finally be joined.
This story appears in the November 7, 2005 print edition of U.S. News & World Report.