Harriet Miers Supreme Court nomination
Encyclopedia
On October 3, 2005, Harriet Miers
was nominated for Associate Justice
of the U.S. Supreme Court
by President
George W. Bush
to replace retiring Associate Justice Sandra Day O'Connor
. Miers was, at the time, White House Counsel
, and had previously served in several roles both during Bush's tenure as Governor of Texas
and President
The nomination almost immediately drew criticism, virtually all of it from within the President's own party: David Frum
castigated an "unforced error", and Robert Bork
denounced it a "disaster" and "a slap in the face to the conservatives who’ve been building up a conservative legal movement for the last 20 years." Hearings before the United States Senate
Judiciary Committee had been scheduled to begin on November 7, and members of the Republican
leadership had stated before the nomination that they aimed to have the nominee confirmed before Thanksgiving
(November 24). Miers withdrew her nomination on October 27, 2005
On July 1, 2005, Sandra Day O'Connor announced her plan to retire as an Associate Justice of the U.S. Supreme Court, effective as of the date that her replacement was confirmed by the United States Senate
. Bush appointed Miers as head of the search committee for candidates to replace O'Connor. On July 19, Bush announced that he had chosen John G. Roberts, Jr. as O'Connor's replacement. After William Rehnquist
died of complications from thyroid cancer
on September 3, Bush withdrew this nomination and renominated Roberts for Chief Justice
, to which he was confirmed.
Meanwhile, Senate Minority Leader Harry Reid
(D-Nevada
) recommended Miers as O'Connor's successor. Bush agreed with Reid's suggestion, factoring comments by Senate Judiciary Committee Chairman Arlen Specter
(R
-Pennsylvania
) and ranking Senator Pat Leahy (D
-Vermont
) that Bush's nominees should be outside of the appellate court system
. First Lady
Laura Bush
and Senator Hillary Clinton
had also both publicly expressed hope that he would nominate a woman.
On October 3, Bush nominated Miers to succeed O'Connor.
, where she received a bachelor's degree
in mathematics
(1967) and a Juris Doctor
degree (1970). However, Miers' education would later prove troublesome during her nomination process. Her academic background went against a tradition that had gained momentum since the late 1970s of appointing justices who had received their collegiate, legal, and other graduate education at elite institutions. At the time of her nomination, all sitting justices hailed from leading law schools (specifically: Yale
, Harvard
, Stanford
, Columbia
, and Northwestern).
Consequently, as the nomination process developed, individuals across the partisan spectrum came to both denigrate Miers on account of her degrees as well as to paint them as a non-issue. For instance, conservative columnist Charles Krauthammer
addressing her education contended that "the Supreme Court is an elite institution. It is not one of the 'popular' branches of government," while conversely then Senate Minority Leader Harry Reid (D-NV) stated he did not feel an Ivy League
pedigree was a necessary criterion for placement on the court. However, in the long run, discussion over Miers’ academic credentials was overshadowed by the focus placed on her career history and ties to the Bush administration, with fears of “snobbery” calls quieting discussion.
for the Chief Judge
of the United States District Court
for the Northern District of Texas
, but had never served as a judge. She had neither taught nor written to any substantial extent on law. In private practice, as a corporate litigator
, Miers had courtroom experience, but a scant and undistinguished track record of litigating in federal court
(almost none litigating constitutional issues), and had never argued a case before the Supreme Court.
Speaking to Miers's lack of credentials, the White House quickly advanced the defense that 41 of the 110 Supreme Court Justices appointed to date had never served as a judge prior to their nomination. Some examples during the 20th century include Louis Brandeis
(appointed 1916), Felix Frankfurter
(1939), William O. Douglas
(1939), Robert Jackson
(1941), Earl Warren
(1953), Abe Fortas
(1965), Lewis Powell
(1972), and William Rehnquist
(1972). The White House's attempt to use this to placate opposition at best had no valence, and at worst, backfired: offering the comparison to Fortas or particularly Warren further inflamed opposition among conservatives, who do not look upon either as a great exemplar of the kind of Supreme Court justice desired. The White House also argued that 10 of the 34 Justices appointed since 1933 were appointed from positions within the President's administration (as was the case with Miers). These Justices include the aforementioned Powell, Warren, Frankfurter, and Douglas, as well as Arthur Goldberg
and Tom C. Clark
.
Senate minority leader Harry Reid
(D-Nevada
), who had previously floated Miers as an example of an acceptable nominee (further inflaming conservative hostility), issued a statement:
stated on Good Morning America
that "[t]here's precious little to go on and a deep concern that this would be a Souter
-type candidate."; in reference to David Souter having been appointed by George H. W. Bush, yet Souter turned out to be considered a mostly liberal justice.
, among other abortion
-related Supreme Court precedents, was highly topical in this nomination, in part because O'Connor had voted to overturn a number of state restrictions on abortion, often in narrowly divided 5-4 decisions.
As the confirmation process proceeded, more became known about Miers' personal/judicial views on abortion. In 1989, when Miers was running for the Dallas
City Council, she allegedly filled out a survey for the anti-abortion group Texas United for Life. The questionnaire sought to gauge candidates' feelings on the use of constitutional amendment
s or state laws to ban abortions in the event the Supreme Court overturned a 1973 ruling that established abortion rights. The questionnaire asked "If Congress passes a Human Life Amendment to the Constitution that would prohibit abortion except when it was necessary to prevent the death of the mother, would you actively support its ratification by the Texas Legislature." Miers answered "yes" to this question and all others listed.
Miers said in 1992 that she felt Supreme Court nominees should not be asked about how they would rule on abortion issues. In 1993, when the American Bar Association
(ABA) opted to take a stance in favor of legal access to abortion, Miers fought to have the full membership of the ABA vote on the topic: "If we were going to take a position on this divisive issue, the members should have been able to vote."
It is not clear what impact, if any, her personal views would have had on her judicial rulings. The religious beliefs of nominees on abortion and other controversial social issues have been a significant part of confirmation hearings for nominees thought to have traditional religious beliefs. Some civil rights
activists (notably the Catholic League for Civil and Religious Rights, Notre Dame
law professor Charles Rice
in the National Review
, the civil rights group the Center for Jewish Values
and the conservative Catholic group Fidelis
) consider such interrogation by senators to be a violation of the constitutional prohibition of any religious tests for federal office.
Senator Brownback, a member of the Judiciary Committee, said there was a "good chance" he would vote against Miers if she testified that Roe v. Wade was "settled law".
Miers withdrew her nomination shortly after an awkward dispute she had in a private talk with Sen. Arlen Specter of Pennsylvania, then the Republican chairman of the Senate Judiciary Committee. At issue was what she had said during their private talk about the right to privacy, a major underpinning of Roe v. Wade.
, Miers supported affirmative action
, going so far as to continue a quota system
for women and ethnic minorities practicing law in the state. Bob Dunn, the outgoing president of the organization, described Miers as "certainly one of the leaders" in supporting the quota system.
, but opposed the repeal of the sodomy
laws that were ultimately overturned by a 6–3 decision (with Justice O'Connor in the majority) in Lawrence v. Texas
. Miers was mistakenly thought to have served on the board of the so-called ex-gay
organization Exodus International
; she had actually served on the board of Exodus Ministries
, a former prisoner rehabilitation
organization.
. Some commentators have asked whether this portends a lack of respect for the proper role of the courts. For example, conservative activist Mark Levin
responded to this information by saying, "[i]f there is a bias toward judicial supremacy, it's best that we know this now, in advance of a confirmation vote." Miers' rationale for withdrawing her nomination—that she feared the Senate's demand for information about her White House work would force a breach of Executive Branch secrecy—may indicate that she supported expansive presidential powers.
Commission (having been appointed by Bush when he was Governor of Texas).
In 1997, the Commission hired Lawrence Littwin as the lottery's executive director; five months later, he was fired. Littwin brought suit over his firing, alleging that the lottery contractor, GTech Corporation, had influenced the Commission to fire him for improper reasons. GTech settled the case by paying him $300,000, with Littwin agreeing not to discuss the case or the settlement. Upon Miers' nomination to the Court, GTech, at the request of the Senate Judiciary Committee, released Littwin from the confidentiality provision. Conservative
columnist Jerome Corsi
has called Littwin's testimony "potentially explosive" because it could have implicated Miers in an attempt to cover up the George W. Bush military service controversy
.
Notable conservative commentators expressing these or other concerns included newspaper columnists Pat Buchanan
, Ann Coulter
, Charles Krauthammer
, William Kristol
, Rush Limbaugh
, Ramesh Ponnuru
, and George Will
; former Bush speechwriter David Frum
; and constitutional scholar Randy Barnett
. Finally, Robert Bork
, one of the premier advocates of originalism
and a Supreme Court nominee under President Reagan
who was eventually rejected by the Senate, proclaimed that the nomination was "a disaster on every level," and a "slap in the face" to conservatives.
In addition to the initial positive comments from Democratic Senator Harry Reid, other prominent Republican conservatives were supportive of Miers, including former U.S. House Speaker Newt Gingrich
, Focus on the Family
founder James Dobson
(who later suggested he would have recanted his endorsement if she had not withdrawn), Senator John Cornyn
of Texas, columnist Mark Steyn
, and former Indiana Senator Dan Coats
, who became the Bush administration's appointed guide for Miers through the confirmation process.
Robert Schenck
had access to Harriet Miers
during her brief Supreme Court nomination and took exception that she was attending St. John's Episcopal Church, Washington, D.C.
rather than a local chapter of the more fundamentalist Church of Christ
as she had done back in Texas.
The news of the nomination and Bush's support of it was part of the inspiration for satirist
Stephen Colbert
to create the term
"Truthiness
", meaning to know things intuitively
without regard for evidence. Colbert said in the guise of his character
on The Colbert Report:
Bush stated that Miers asked to withdraw her nomination on October 27, 2005, and he acceded to her wishes. The narrative where Miers jumped rather than being pushed was accepted at first, but has since been challenged. Most prominently, Jan Crawford Greenburg
reported that Miers' abysmal performance in murder board
s before the hearings made clear to White House Chief of Staff
Andy Card and Deputy White House Counsel William K. Kelley
that the game was up, at which point, they demanded Miers withdraw. After initial resistance, she acquiesced.
Bush and Miers attributed her withdrawal to requests from the Judiciary Committee for the release of internal White House documents that the administration had insisted were protected by executive privilege
. Both Republican and Democratic senators denied that they were attempting to obtain privileged documents. Most observers instead believed this rationale was a way for the Bush administration to pull her nomination and still "save face," by avoiding a direct acknowledgment of the lack of support for her nomination. The claim of executive privilege had been publicly recommended as an "exit strategy" by commentators such as Charles Krauthammer
, and reports indicated that White House advisors had considered that as a tactic.
Samuel Alito
, a federal judge on the U.S. Court of Appeals for the Third Circuit, was nominated four days after her withdrawal and subsequently confirmed.
Harriet Miers
Harriet Ellan Miers is an American lawyer and former White House Counsel. In 2005, she was nominated by President George W. Bush to be an Associate Justice of the U.S...
was nominated for Associate Justice
Associate Justice of the Supreme Court of the United States
Associate Justices of the Supreme Court of the United States are the members of the Supreme Court of the United States other than the Chief Justice of the United States...
of the U.S. Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
by President
President of the United States
The President of the United States of America is the head of state and head of government of the United States. The president leads the executive branch of the federal government and is the commander-in-chief of the United States Armed Forces....
George W. Bush
George W. Bush
George Walker Bush is an American politician who served as the 43rd President of the United States, from 2001 to 2009. Before that, he was the 46th Governor of Texas, having served from 1995 to 2000....
to replace retiring Associate Justice Sandra Day O'Connor
Sandra Day O'Connor
Sandra Day O'Connor is an American jurist who was the first female member of the Supreme Court of the United States. She served as an Associate Justice from 1981 until her retirement from the Court in 2006. O'Connor was appointed by President Ronald Reagan in 1981...
. Miers was, at the time, White House Counsel
White House Counsel
The White House Counsel is a staff appointee of the President of the United States.-Role:The Counsel's role is to advise the President on all legal issues concerning the President and the White House...
, and had previously served in several roles both during Bush's tenure as Governor of Texas
Governor of Texas
The governor of Texas is the head of the executive branch of Texas's government and the commander-in-chief of the state's military forces. The governor has the power to either approve or veto bills passed by the Texas Legislature, and to convene the legislature...
and President
The nomination almost immediately drew criticism, virtually all of it from within the President's own party: David Frum
David Frum
David J. Frum is a Canadian American journalist active in both the United States and Canadian political arenas. A former economic speechwriter for President George W. Bush, he is also the author of the first "insider" book about the Bush presidency...
castigated an "unforced error", and Robert Bork
Robert Bork
Robert Heron Bork is an American legal scholar who has advocated the judicial philosophy of originalism. Bork formerly served as Solicitor General, Acting Attorney General, and judge for the United States Court of Appeals for the District of Columbia Circuit...
denounced it a "disaster" and "a slap in the face to the conservatives who’ve been building up a conservative legal movement for the last 20 years." Hearings before the United States Senate
United States Senate
The United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...
Judiciary Committee had been scheduled to begin on November 7, and members of the Republican
Republican Party (United States)
The Republican Party is one of the two major contemporary political parties in the United States, along with the Democratic Party. Founded by anti-slavery expansion activists in 1854, it is often called the GOP . The party's platform generally reflects American conservatism in the U.S...
leadership had stated before the nomination that they aimed to have the nominee confirmed before Thanksgiving
Thanksgiving
Thanksgiving Day is a holiday celebrated primarily in the United States and Canada. Thanksgiving is celebrated each year on the second Monday of October in Canada and on the fourth Thursday of November in the United States. In Canada, Thanksgiving falls on the same day as Columbus Day in the...
(November 24). Miers withdrew her nomination on October 27, 2005
Overview of the selection process
United States Senate
The United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...
. Bush appointed Miers as head of the search committee for candidates to replace O'Connor. On July 19, Bush announced that he had chosen John G. Roberts, Jr. as O'Connor's replacement. After William Rehnquist
William Rehnquist
William Hubbs Rehnquist was an American lawyer, jurist, and political figure who served as an Associate Justice on the Supreme Court of the United States and later as the 16th Chief Justice of the United States...
died of complications from thyroid cancer
Thyroid cancer
Thyroid neoplasm is a neoplasm or tumor of the thyroid. It can be a benign tumor such as thyroid adenoma, or it can be a malignant neoplasm , such as papillary, follicular, medullary or anaplastic thyroid cancer. Most patients are 25 to 65 years of age when first diagnosed; women are more affected...
on September 3, Bush withdrew this nomination and renominated Roberts for Chief Justice
Chief Justice of the United States
The Chief Justice of the United States is the head of the United States federal court system and the chief judge of the Supreme Court of the United States. The Chief Justice is one of nine Supreme Court justices; the other eight are the Associate Justices of the Supreme Court of the United States...
, to which he was confirmed.
Meanwhile, Senate Minority Leader Harry Reid
Harry Reid
Harry Mason Reid is the senior United States Senator from Nevada, serving since 1987. A member of the Democratic Party, he has been the Senate Majority Leader since January 2007, having previously served as Minority Leader and Minority and Majority Whip.Previously, Reid was a member of the U.S...
(D-Nevada
Nevada
Nevada is a state in the western, mountain west, and southwestern regions of the United States. With an area of and a population of about 2.7 million, it is the 7th-largest and 35th-most populous state. Over two-thirds of Nevada's people live in the Las Vegas metropolitan area, which contains its...
) recommended Miers as O'Connor's successor. Bush agreed with Reid's suggestion, factoring comments by Senate Judiciary Committee Chairman Arlen Specter
Arlen Specter
Arlen Specter is a former United States Senator from Pennsylvania. Specter is a Democrat, but was a Republican from 1965 until switching to the Democratic Party in 2009...
(R
Republican Party (United States)
The Republican Party is one of the two major contemporary political parties in the United States, along with the Democratic Party. Founded by anti-slavery expansion activists in 1854, it is often called the GOP . The party's platform generally reflects American conservatism in the U.S...
-Pennsylvania
Pennsylvania
The Commonwealth of Pennsylvania is a U.S. state that is located in the Northeastern and Mid-Atlantic regions of the United States. The state borders Delaware and Maryland to the south, West Virginia to the southwest, Ohio to the west, New York and Ontario, Canada, to the north, and New Jersey to...
) and ranking Senator Pat Leahy (D
Democratic Party (United States)
The Democratic Party is one of two major contemporary political parties in the United States, along with the Republican Party. The party's socially liberal and progressive platform is largely considered center-left in the U.S. political spectrum. The party has the lengthiest record of continuous...
-Vermont
Vermont
Vermont is a state in the New England region of the northeastern United States of America. The state ranks 43rd in land area, , and 45th in total area. Its population according to the 2010 census, 630,337, is the second smallest in the country, larger only than Wyoming. It is the only New England...
) that Bush's nominees should be outside of the appellate court system
United States court of appeals
The United States courts of appeals are the intermediate appellate courts of the United States federal court system...
. First Lady
First Lady of the United States
First Lady of the United States is the title of the hostess of the White House. Because this position is traditionally filled by the wife of the president of the United States, the title is most often applied to the wife of a sitting president. The current first lady is Michelle Obama.-Current:The...
Laura Bush
Laura Bush
Laura Lane Welch Bush is the wife of the 43rd President of the United States, George W. Bush. She was the First Lady of the United States from January 20, 2001, to January 20, 2009. She has held a love of books and reading since childhood and her life and education have reflected that interest...
and Senator Hillary Clinton
Hillary Rodham Clinton
Hillary Diane Rodham Clinton is the 67th United States Secretary of State, serving in the administration of President Barack Obama. She was a United States Senator for New York from 2001 to 2009. As the wife of the 42nd President of the United States, Bill Clinton, she was the First Lady of the...
had also both publicly expressed hope that he would nominate a woman.
On October 3, Bush nominated Miers to succeed O'Connor.
Education
Miers attended Southern Methodist UniversitySouthern Methodist University
Southern Methodist University is a private university in Dallas, Texas, United States. Founded in 1911 by the Methodist Episcopal Church, South, SMU operates campuses in Dallas, Plano, and Taos, New Mexico. SMU is owned by the South Central Jurisdiction of the United Methodist Church...
, where she received a bachelor's degree
Bachelor's degree
A bachelor's degree is usually an academic degree awarded for an undergraduate course or major that generally lasts for three or four years, but can range anywhere from two to six years depending on the region of the world...
in mathematics
Mathematics
Mathematics is the study of quantity, space, structure, and change. Mathematicians seek out patterns and formulate new conjectures. Mathematicians resolve the truth or falsity of conjectures by mathematical proofs, which are arguments sufficient to convince other mathematicians of their validity...
(1967) and a Juris Doctor
Juris Doctor
Juris Doctor is a professional doctorate and first professional graduate degree in law.The degree was first awarded by Harvard University in the United States in the late 19th century and was created as a modern version of the old European doctor of law degree Juris Doctor (see etymology and...
degree (1970). However, Miers' education would later prove troublesome during her nomination process. Her academic background went against a tradition that had gained momentum since the late 1970s of appointing justices who had received their collegiate, legal, and other graduate education at elite institutions. At the time of her nomination, all sitting justices hailed from leading law schools (specifically: Yale
Yale Law School
Yale Law School, or YLS, is the law school of Yale University in New Haven, Connecticut, United States. Established in 1824, it offers the J.D., LL.M., J.S.D. and M.S.L. degrees in law. It also hosts visiting scholars, visiting researchers and a number of legal research centers...
, Harvard
Harvard Law School
Harvard Law School is one of the professional graduate schools of Harvard University. Located in Cambridge, Massachusetts, it is the oldest continually-operating law school in the United States and is home to the largest academic law library in the world. The school is routinely ranked by the U.S...
, Stanford
Stanford Law School
Stanford Law School is a graduate school at Stanford University located in the area known as the Silicon Valley, near Palo Alto, California in the United States. The Law School was established in 1893 when former President Benjamin Harrison joined the faculty as the first professor of law...
, Columbia
Columbia Law School
Columbia Law School, founded in 1858, is one of the oldest and most prestigious law schools in the United States. A member of the Ivy League, Columbia Law School is one of the professional graduate schools of Columbia University in New York City. It offers the J.D., LL.M., and J.S.D. degrees in...
, and Northwestern).
Consequently, as the nomination process developed, individuals across the partisan spectrum came to both denigrate Miers on account of her degrees as well as to paint them as a non-issue. For instance, conservative columnist Charles Krauthammer
Charles Krauthammer
Charles Krauthammer, MD is an American Pulitzer Prize–winning syndicated columnist, political commentator, and physician. His weekly column appears in The Washington Post and is syndicated to more than 275 newspapers and media outlets. He is a contributing editor to the Weekly Standard and The New...
addressing her education contended that "the Supreme Court is an elite institution. It is not one of the 'popular' branches of government," while conversely then Senate Minority Leader Harry Reid (D-NV) stated he did not feel an Ivy League
Ivy League
The Ivy League is an athletic conference comprising eight private institutions of higher education in the Northeastern United States. The conference name is also commonly used to refer to those eight schools as a group...
pedigree was a necessary criterion for placement on the court. However, in the long run, discussion over Miers’ academic credentials was overshadowed by the focus placed on her career history and ties to the Bush administration, with fears of “snobbery” calls quieting discussion.
Professional experience
Miers had clerkedLaw clerk
A law clerk or a judicial clerk is a person who provides assistance to a judge in researching issues before the court and in writing opinions. Law clerks are not court clerks or courtroom deputies, who are administrative staff for the court. Most law clerks are recent law school graduates who...
for the Chief Judge
Chief judge
Chief Judge is a title that can refer to the highest-ranking judge of a court that has more than one judge. The meaning and usage of the term vary from one court system to another...
of the United States District Court
United States district court
The United States district courts are the general trial courts of the United States federal court system. Both civil and criminal cases are filed in the district court, which is a court of law, equity, and admiralty. There is a United States bankruptcy court associated with each United States...
for the Northern District of Texas
United States District Court for the Northern District of Texas
The United States District Court for the Northern District of Texas is a United States district court. Its first judge, Andrew Phelps McCormick, was appointed to the court on April 10, 1879. The court convenes in Dallas, Texas with divisions in Fort Worth, Amarillo, Abilene, Lubbock, San Angelo...
, but had never served as a judge. She had neither taught nor written to any substantial extent on law. In private practice, as a corporate litigator
Corporate law
Corporate law is the study of how shareholders, directors, employees, creditors, and other stakeholders such as consumers, the community and the environment interact with one another. Corporate law is a part of a broader companies law...
, Miers had courtroom experience, but a scant and undistinguished track record of litigating in federal court
United States federal courts
The United States federal courts make up the judiciary branch of federal government of the United States organized under the United States Constitution and laws of the federal government.-Categories:...
(almost none litigating constitutional issues), and had never argued a case before the Supreme Court.
Speaking to Miers's lack of credentials, the White House quickly advanced the defense that 41 of the 110 Supreme Court Justices appointed to date had never served as a judge prior to their nomination. Some examples during the 20th century include Louis Brandeis
Louis Brandeis
Louis Dembitz Brandeis ; November 13, 1856 – October 5, 1941) was an Associate Justice on the Supreme Court of the United States from 1916 to 1939.He was born in Louisville, Kentucky, to Jewish immigrant parents who raised him in a secular mode...
(appointed 1916), Felix Frankfurter
Felix Frankfurter
Felix Frankfurter was an Associate Justice of the United States Supreme Court.-Early life:Frankfurter was born into a Jewish family on November 15, 1882, in Vienna, Austria, then part of the Austro-Hungarian Empire in Europe. He was the third of six children of Leopold and Emma Frankfurter...
(1939), William O. Douglas
William O. Douglas
William Orville Douglas was an Associate Justice of the United States Supreme Court. With a term lasting 36 years and 209 days, he is the longest-serving justice in the history of the Supreme Court...
(1939), Robert Jackson
Robert H. Jackson
Robert Houghwout Jackson was United States Attorney General and an Associate Justice of the United States Supreme Court . He was also the chief United States prosecutor at the Nuremberg Trials...
(1941), Earl Warren
Earl Warren
Earl Warren was the 14th Chief Justice of the United States.He is known for the sweeping decisions of the Warren Court, which ended school segregation and transformed many areas of American law, especially regarding the rights of the accused, ending public-school-sponsored prayer, and requiring...
(1953), Abe Fortas
Abe Fortas
Abraham Fortas was a U.S. Supreme Court associate justice from 1965 to 1969. Originally from Tennessee, Fortas became a law professor at Yale, and subsequently advised the Securities and Exchange Commission. He then worked at the Interior Department under Franklin D...
(1965), Lewis Powell
Lewis Franklin Powell, Jr.
Lewis Franklin Powell, Jr. was an Associate Justice of the Supreme Court of the United States. He developed a reputation as a judicial moderate, and was known as a master of compromise and consensus-building. He was also widely well regarded by contemporaries due to his personal good manners and...
(1972), and William Rehnquist
William Rehnquist
William Hubbs Rehnquist was an American lawyer, jurist, and political figure who served as an Associate Justice on the Supreme Court of the United States and later as the 16th Chief Justice of the United States...
(1972). The White House's attempt to use this to placate opposition at best had no valence, and at worst, backfired: offering the comparison to Fortas or particularly Warren further inflamed opposition among conservatives, who do not look upon either as a great exemplar of the kind of Supreme Court justice desired. The White House also argued that 10 of the 34 Justices appointed since 1933 were appointed from positions within the President's administration (as was the case with Miers). These Justices include the aforementioned Powell, Warren, Frankfurter, and Douglas, as well as Arthur Goldberg
Arthur Goldberg
Arthur Joseph Goldberg was an American statesman and jurist who served as the U.S. Secretary of Labor, Supreme Court Justice and Ambassador to the United Nations.-Early life:...
and Tom C. Clark
Tom C. Clark
Thomas Campbell Clark was United States Attorney General from 1945 to 1949 and an Associate Justice of the Supreme Court of the United States .- Early life and career :...
.
Senate minority leader Harry Reid
Harry Reid
Harry Mason Reid is the senior United States Senator from Nevada, serving since 1987. A member of the Democratic Party, he has been the Senate Majority Leader since January 2007, having previously served as Minority Leader and Minority and Majority Whip.Previously, Reid was a member of the U.S...
(D-Nevada
Nevada
Nevada is a state in the western, mountain west, and southwestern regions of the United States. With an area of and a population of about 2.7 million, it is the 7th-largest and 35th-most populous state. Over two-thirds of Nevada's people live in the Las Vegas metropolitan area, which contains its...
), who had previously floated Miers as an example of an acceptable nominee (further inflaming conservative hostility), issued a statement:
- In my view, the Supreme Court would benefit from the addition of a justice who has real experience as a practicing lawyer. The current justices have all been chosen from the lower federal courts. A nominee with relevant non-judicial experience would bring a different and useful perspective to the Court.
Nomination issues
Because little was known about Miers' position on divisive issues, and because she had no prior experience as a judge, her nomination was subject to debate on both sides. Many critics were concerned that her inner-circle relationship with the president and his staff could lead to conflicts of interests in court cases. Republican Senator Sam BrownbackSam Brownback
Samuel Dale "Sam" Brownback is the 46th and current Governor of Kansas. A member of the Republican Party, he served as a U.S. Senator from Kansas from 1996 to 2011, and as a U.S. Representative for Kansas's 2nd congressional district from 1995 to 1996...
stated on Good Morning America
Good Morning America
Good Morning America is an American morning news and talk show that is broadcast on the ABC television network; it debuted on November 3, 1975. The weekday program airs for two hours; a third hour aired between 2007 and 2008 exclusively on ABC News Now...
that "[t]here's precious little to go on and a deep concern that this would be a Souter
David Souter
David Hackett Souter is a former Associate Justice of the Supreme Court of the United States. He served from 1990 until his retirement on June 29, 2009. Appointed by President George H. W. Bush to fill the seat vacated by William J...
-type candidate."; in reference to David Souter having been appointed by George H. W. Bush, yet Souter turned out to be considered a mostly liberal justice.
Abortion
The subject of Roe v. WadeRoe v. Wade
Roe v. Wade, , was a controversial landmark decision by the United States Supreme Court on the issue of abortion. The Court decided that a right to privacy under the due process clause in the Fourteenth Amendment to the United States Constitution extends to a woman's decision to have an abortion,...
, among other abortion
Abortion
Abortion is defined as the termination of pregnancy by the removal or expulsion from the uterus of a fetus or embryo prior to viability. An abortion can occur spontaneously, in which case it is usually called a miscarriage, or it can be purposely induced...
-related Supreme Court precedents, was highly topical in this nomination, in part because O'Connor had voted to overturn a number of state restrictions on abortion, often in narrowly divided 5-4 decisions.
As the confirmation process proceeded, more became known about Miers' personal/judicial views on abortion. In 1989, when Miers was running for the Dallas
Dallas, Texas
Dallas is the third-largest city in Texas and the ninth-largest in the United States. The Dallas-Fort Worth Metroplex is the largest metropolitan area in the South and fourth-largest metropolitan area in the United States...
City Council, she allegedly filled out a survey for the anti-abortion group Texas United for Life. The questionnaire sought to gauge candidates' feelings on the use of constitutional amendment
Constitutional amendment
A constitutional amendment is a formal change to the text of the written constitution of a nation or state.Most constitutions require that amendments cannot be enacted unless they have passed a special procedure that is more stringent than that required of ordinary legislation...
s or state laws to ban abortions in the event the Supreme Court overturned a 1973 ruling that established abortion rights. The questionnaire asked "If Congress passes a Human Life Amendment to the Constitution that would prohibit abortion except when it was necessary to prevent the death of the mother, would you actively support its ratification by the Texas Legislature." Miers answered "yes" to this question and all others listed.
Miers said in 1992 that she felt Supreme Court nominees should not be asked about how they would rule on abortion issues. In 1993, when the American Bar Association
American Bar Association
The American Bar Association , founded August 21, 1878, is a voluntary bar association of lawyers and law students, which is not specific to any jurisdiction in the United States. The ABA's most important stated activities are the setting of academic standards for law schools, and the formulation...
(ABA) opted to take a stance in favor of legal access to abortion, Miers fought to have the full membership of the ABA vote on the topic: "If we were going to take a position on this divisive issue, the members should have been able to vote."
It is not clear what impact, if any, her personal views would have had on her judicial rulings. The religious beliefs of nominees on abortion and other controversial social issues have been a significant part of confirmation hearings for nominees thought to have traditional religious beliefs. Some civil rights
Civil rights
Civil and political rights are a class of rights that protect individuals' freedom from unwarranted infringement by governments and private organizations, and ensure one's ability to participate in the civil and political life of the state without discrimination or repression.Civil rights include...
activists (notably the Catholic League for Civil and Religious Rights, Notre Dame
University of Notre Dame
The University of Notre Dame du Lac is a Catholic research university located in Notre Dame, an unincorporated community north of the city of South Bend, in St. Joseph County, Indiana, United States...
law professor Charles Rice
Charles E. Rice
Charles Edward Rice is an American legal scholar, Catholic apologist, and author of several books. He is best known for his career at the Notre Dame Law School at Notre Dame, Indiana. He began teaching there in 1969, and in 2000 earned Professor Emeritus status...
in the National Review
National Review
National Review is a biweekly magazine founded by the late author William F. Buckley, Jr., in 1955 and based in New York City. It describes itself as "America's most widely read and influential magazine and web site for conservative news, commentary, and opinion."Although the print version of the...
, the civil rights group the Center for Jewish Values
Center for Jewish Values
The Center for Jewish Values was founded in 2001 by Rabbis Tzvi Muller and Paysach Freedman. The Center researches, teaches and promotes specifically the interpersonal mitzvot, Judaism's guidelines on responsibility towards one's fellow man...
and the conservative Catholic group Fidelis
Fidelis
Fidelis can be:* "Fidelis" is a Latin term meaning "faithful".* It is the name of several historical monks, and some saints, including Saint Fidelis of Sigmaringen and Saint Fidelis of Como.* A Catholic-based political advocacy organization....
) consider such interrogation by senators to be a violation of the constitutional prohibition of any religious tests for federal office.
Senator Brownback, a member of the Judiciary Committee, said there was a "good chance" he would vote against Miers if she testified that Roe v. Wade was "settled law".
Miers withdrew her nomination shortly after an awkward dispute she had in a private talk with Sen. Arlen Specter of Pennsylvania, then the Republican chairman of the Senate Judiciary Committee. At issue was what she had said during their private talk about the right to privacy, a major underpinning of Roe v. Wade.
Affirmative action
As President of the Texas State BarState Bar of Texas
The State Bar of Texas is an agency of the judiciary under the administrative control of the Texas Supreme Court. The Texas Bar is responsible for assisting the Texas Supreme Court in overseeing all attorneys licensed to practice law in Texas...
, Miers supported affirmative action
Affirmative action
Affirmative action refers to policies that take factors including "race, color, religion, gender, sexual orientation or national origin" into consideration in order to benefit an underrepresented group, usually as a means to counter the effects of a history of discrimination.-Origins:The term...
, going so far as to continue a quota system
Quota share
A quota share is a specified number or percentage of the allotment as a whole , that is prescribed to each individual entity ....
for women and ethnic minorities practicing law in the state. Bob Dunn, the outgoing president of the organization, described Miers as "certainly one of the leaders" in supporting the quota system.
The right to keep and bear arms
Miers included the "right to keep and bear arms" in a list of "precious liberties" contained in a commentary she authored in 1992.Gay rights
Although Miers did not make her position clear on gay rights, she hinted at her views in answering a questionnaire submitted to her by a Texas gay rights group during her 1989 campaign for a Dallas City Council position. Miers indicated on the questionnaire that she supported civil rights for homosexualsHomosexuality
Homosexuality is romantic or sexual attraction or behavior between members of the same sex or gender. As a sexual orientation, homosexuality refers to "an enduring pattern of or disposition to experience sexual, affectional, or romantic attractions" primarily or exclusively to people of the same...
, but opposed the repeal of the sodomy
Sodomy
Sodomy is an anal or other copulation-like act, especially between male persons or between a man and animal, and one who practices sodomy is a "sodomite"...
laws that were ultimately overturned by a 6–3 decision (with Justice O'Connor in the majority) in Lawrence v. Texas
Lawrence v. Texas
Lawrence v. Texas, 539 U.S. 558 , is a landmark United States Supreme Court case. In the 6-3 ruling, the Court struck down the sodomy law in Texas and, by proxy, invalidated sodomy laws in the thirteen other states where they remained in existence, thereby making same-sex sexual activity legal in...
. Miers was mistakenly thought to have served on the board of the so-called ex-gay
Ex-gay
The ex-gay movement consists of people and organizations that seek to get people to refrain from entering or pursuing same-sex relationships, to eliminate homosexual desires, to develop heterosexual desires, or to enter into a heterosexual relationship...
organization Exodus International
Exodus International
Exodus International is a non-profit, interdenominational ex-gay Christian organization founded by Michael Bussee, Gary Cooper, Frank Worthen, Ron Dennis, and Greg Reid...
; she had actually served on the board of Exodus Ministries
Exodus Ministries
Exodus Ministries is a Dallas, Texas-based non-denominational Christian former prisoner rehabilitation organization, which attempts to help those who are released from prison back into society at large...
, a former prisoner rehabilitation
Rehabilitation (penology)
Rehabilitation means; To restore to useful life, as through therapy and education or To restore to good condition, operation, or capacity....
organization.
Balance of powers
As President of the Texas State Bar, Miers fought legislation that would curtail the power of the Texas Supreme Court to limit attorneys fees in tort lawsuitsTort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...
. Some commentators have asked whether this portends a lack of respect for the proper role of the courts. For example, conservative activist Mark Levin
Mark Levin
Mark Reed Levin is a lawyer, author and the host of American syndicated radio show The Mark Levin Show. Levin served in the cabinet of President Ronald Reagan and was a chief of staff for Attorney General Edwin Meese...
responded to this information by saying, "[i]f there is a bias toward judicial supremacy, it's best that we know this now, in advance of a confirmation vote." Miers' rationale for withdrawing her nomination—that she feared the Senate's demand for information about her White House work would force a breach of Executive Branch secrecy—may indicate that she supported expansive presidential powers.
Other potential controversies: the Texas Lottery Commission
From 1995 to 2000, Miers chaired the Texas LotteryTexas Lottery
The Texas Lottery is the government-operated lottery available throughout Texas. It is operated by the Texas Lottery Commission, headquartered in downtown Austin.-History:...
Commission (having been appointed by Bush when he was Governor of Texas).
In 1997, the Commission hired Lawrence Littwin as the lottery's executive director; five months later, he was fired. Littwin brought suit over his firing, alleging that the lottery contractor, GTech Corporation, had influenced the Commission to fire him for improper reasons. GTech settled the case by paying him $300,000, with Littwin agreeing not to discuss the case or the settlement. Upon Miers' nomination to the Court, GTech, at the request of the Senate Judiciary Committee, released Littwin from the confidentiality provision. Conservative
Conservatism
Conservatism is a political and social philosophy that promotes the maintenance of traditional institutions and supports, at the most, minimal and gradual change in society. Some conservatives seek to preserve things as they are, emphasizing stability and continuity, while others oppose modernism...
columnist Jerome Corsi
Jerome Corsi
Jerome Robert Corsi is an American author, political commentator and conspiracy theorist best known for his two New York Times bestselling books: The Obama Nation and Unfit for Command...
has called Littwin's testimony "potentially explosive" because it could have implicated Miers in an attempt to cover up the George W. Bush military service controversy
George W. Bush military service controversy
George W. Bush's National Guard service was an issue in the 2000 presidential campaign and in the 2004 presidential campaign. A controversy centered on questions of how George W...
.
Reactions to her nomination
Miers' nomination drew criticism from both political parties. Principal complaints included:- That her credentials under objective standards were not sufficient to qualify her for the position.
- That her nomination was the result of political cronyismCronyismCronyism is partiality to long-standing friends, especially by appointing them to positions of authority, regardless of their qualifications. Hence, cronyism is contrary in practice and principle to meritocracy....
. Since her legal experience did not compare to that of other possible candidates, like federal appellate judges Edith JonesEdith JonesEdith Hollan Jones is the Chief Judge of the United States Court of Appeals for the Fifth Circuit.Jones graduated from Cornell University in 1971. She received her J.D. from The University of Texas School of Law in 1974...
, Priscilla OwenPriscilla OwenPriscilla Richman Owen is a federal judge on the United States Court of Appeals for the Fifth Circuit. She was previously a Justice on the Texas Supreme Court.-Early life:...
, and Janice Rogers BrownJanice Rogers BrownJanice Rogers Brown is a federal judge on the United States Court of Appeals for the District of Columbia Circuit. She previously was an Associate Justice of the California Supreme Court, holding that post from May 2, 1996 until her appointment to the D.C. Circuit.President George W. Bush...
, it was deemed likely that President Bush nominated Miers for her personal loyalty to him rather than for her qualifications. She was compared to Michael BrownMichael D. BrownMichael DeWayne Brown was the first Undersecretary of Emergency Preparedness and Response , a division of the Department of Homeland Security . This position is generally referred to as the director or administrator of the Federal Emergency Management Agency . He was appointed in January 2003 by...
, a Bush appointee alleged to have gotten his position based on loyalty rather than experience. Brown had resigned as chief of FEMAFederal Emergency Management AgencyThe Federal Emergency Management Agency is an agency of the United States Department of Homeland Security, initially created by Presidential Reorganization Plan No. 1 of 1978 and implemented by two Executive Orders...
exactly three weeks prior to Miers' nomination, amidst nearly universal condemnation of how he and his agency handled Hurricane KatrinaHurricane KatrinaHurricane Katrina of the 2005 Atlantic hurricane season was a powerful Atlantic hurricane. It is the costliest natural disaster, as well as one of the five deadliest hurricanes, in the history of the United States. Among recorded Atlantic hurricanes, it was the sixth strongest overall...
. - That there was no written record to demonstrate that she was either a strict constructionistStrict constructionismIn the United States, Strict constructionism refers to a particular legal philosophy of judicial interpretation that limits or restricts judicial interpretation. The phrase is also commonly used more loosely as a generic term for conservatism among the judiciary.- Strict sense of the term :Strict...
or originalistOriginalismIn the context of United States constitutional interpretation, originalism is a principle of interpretation that tries to discover the original meaning or intent of the constitution. It is based on the principle that the judiciary is not supposed to create, amend or repeal laws but only to uphold...
in her approach to constitutional interpretation. There were qualms that she could be a moderateModerateIn politics and religion, a moderate is an individual who is not extreme, partisan or radical. In recent years, political moderates has gained traction as a buzzword....
or liberal "sleeper" who would support abortion rights, affirmative action and gay rights if confirmed to a seat on the Supreme Court.
Notable conservative commentators expressing these or other concerns included newspaper columnists Pat Buchanan
Pat Buchanan
Patrick Joseph "Pat" Buchanan is an American paleoconservative political commentator, author, syndicated columnist, politician and broadcaster. Buchanan was a senior adviser to American Presidents Richard Nixon, Gerald Ford, and Ronald Reagan, and was an original host on CNN's Crossfire. He sought...
, Ann Coulter
Ann Coulter
Ann Hart Coulter is an American lawyer, conservative social and political commentator, author, and syndicated columnist. She frequently appears on television, radio, and as a speaker at public events and private events...
, Charles Krauthammer
Charles Krauthammer
Charles Krauthammer, MD is an American Pulitzer Prize–winning syndicated columnist, political commentator, and physician. His weekly column appears in The Washington Post and is syndicated to more than 275 newspapers and media outlets. He is a contributing editor to the Weekly Standard and The New...
, William Kristol
William Kristol
William Kristol is an American neoconservative political analyst and commentator. He is the founder and editor of the political magazine The Weekly Standard and a regular commentator on the Fox News Channel....
, Rush Limbaugh
Rush Limbaugh
Rush Hudson Limbaugh III is an American radio talk show host, conservative political commentator, and an opinion leader in American conservatism. He hosts The Rush Limbaugh Show which is aired throughout the U.S. on Premiere Radio Networks and is the highest-rated talk-radio program in the United...
, Ramesh Ponnuru
Ramesh Ponnuru
Ramesh Ponnuru is a Washington, D.C.-based Indian American columnist and a senior editor for National Review magazine. He is also a contributor to TIME magazine and WashingtonPost.com...
, and George Will
George Will
George Frederick Will is an American newspaper columnist, journalist, and author. He is a Pulitzer Prize-winner best known for his conservative commentary on politics...
; former Bush speechwriter David Frum
David Frum
David J. Frum is a Canadian American journalist active in both the United States and Canadian political arenas. A former economic speechwriter for President George W. Bush, he is also the author of the first "insider" book about the Bush presidency...
; and constitutional scholar Randy Barnett
Randy Barnett
Randy E. Barnett is a lawyer, a law professor at Georgetown University Law Center, where he teaches constitutional law and contracts, and a legal theorist in the United States...
. Finally, Robert Bork
Robert Bork
Robert Heron Bork is an American legal scholar who has advocated the judicial philosophy of originalism. Bork formerly served as Solicitor General, Acting Attorney General, and judge for the United States Court of Appeals for the District of Columbia Circuit...
, one of the premier advocates of originalism
Originalism
In the context of United States constitutional interpretation, originalism is a principle of interpretation that tries to discover the original meaning or intent of the constitution. It is based on the principle that the judiciary is not supposed to create, amend or repeal laws but only to uphold...
and a Supreme Court nominee under President Reagan
Ronald Reagan
Ronald Wilson Reagan was the 40th President of the United States , the 33rd Governor of California and, prior to that, a radio, film and television actor....
who was eventually rejected by the Senate, proclaimed that the nomination was "a disaster on every level," and a "slap in the face" to conservatives.
In addition to the initial positive comments from Democratic Senator Harry Reid, other prominent Republican conservatives were supportive of Miers, including former U.S. House Speaker Newt Gingrich
Newt Gingrich
Newton Leroy "Newt" Gingrich is a U.S. Republican Party politician who served as the House Minority Whip from 1989 to 1995 and as the 58th Speaker of the U.S. House of Representatives from 1995 to 1999....
, Focus on the Family
Focus on the Family
Focus on the Family is an American evangelical Christian tax-exempt non-profit organization founded in 1977 by psychologist James Dobson, and is based in Colorado Springs, Colorado. Focus on the Family is one of a number of evangelical parachurch organizations that rose to prominence in the 1980s...
founder James Dobson
James Dobson
James Clayton "Jim" Dobson, Jr. is an American evangelical Christian author, psychologist, and founder in 1977 of Focus on the Family , which he led until 2003. In the 1980s he was ranked as one of the most influential spokesman for conservative social positions in American public life...
(who later suggested he would have recanted his endorsement if she had not withdrawn), Senator John Cornyn
John Cornyn
John Cornyn, III is the junior United States Senator for Texas, serving since 2003. He is a member of the Republican Party. He was elected Chairman of the National Republican Senatorial Committee for the 111th U.S. Congress....
of Texas, columnist Mark Steyn
Mark Steyn
Mark Steyn is a Canadian-born writer, conservative-leaning political commentator, and cultural critic. He has written five books, including America Alone: The End of the World As We Know It, a New York Times bestseller...
, and former Indiana Senator Dan Coats
Dan Coats
Daniel Ray "Dan" Coats is the junior United States Senator from Indiana and member of the Republican Party. He was in the United States Senate from from 1989 to 1999, retired, and then returned in 2011....
, who became the Bush administration's appointed guide for Miers through the confirmation process.
Robert Schenck
Paul Schenck
Paul Chaim Benedicta Schenck is an ordained Catholic priest who is a pro-life activist along with his twin brother, Robert Schenck...
had access to Harriet Miers
Harriet Miers
Harriet Ellan Miers is an American lawyer and former White House Counsel. In 2005, she was nominated by President George W. Bush to be an Associate Justice of the U.S...
during her brief Supreme Court nomination and took exception that she was attending St. John's Episcopal Church, Washington, D.C.
St. John's Episcopal Church, Washington, D.C.
St. John's Episcopal Church, Lafayette Square, is a historic Episcopal church located at 16th and H Streets NW, in Washington, D.C. It is near Lafayette Square and the White House....
rather than a local chapter of the more fundamentalist Church of Christ
Church of Christ
Churches of Christ are autonomous Christian congregations associated with one another through common beliefs and practices. They seek to base doctrine and practice on the Bible alone, and seek to be New Testament congregations as originally established by the authority of Christ. Historically,...
as she had done back in Texas.
The news of the nomination and Bush's support of it was part of the inspiration for satirist
Satire
Satire is primarily a literary genre or form, although in practice it can also be found in the graphic and performing arts. In satire, vices, follies, abuses, and shortcomings are held up to ridicule, ideally with the intent of shaming individuals, and society itself, into improvement...
Stephen Colbert
Stephen Colbert
Stephen Tyrone Colbert is an American political satirist, writer, comedian, television host, and actor. He is the host of Comedy Central's The Colbert Report, a satirical news show in which Colbert portrays a caricatured version of conservative political pundits.Colbert originally studied to be an...
to create the term
Terminology
Terminology is the study of terms and their use. Terms are words and compound words that in specific contexts are given specific meanings, meanings that may deviate from the meaning the same words have in other contexts and in everyday language. The discipline Terminology studies among other...
"Truthiness
Truthiness
Truthiness is a "truth" that a person claims to know intuitively "from the gut" or that it "feels right" without regard to evidence, logic, intellectual examination, or facts....
", meaning to know things intuitively
Intuition (knowledge)
Intuition is the ability to acquire knowledge without inference or the use of reason. "The word 'intuition' comes from the Latin word 'intueri', which is often roughly translated as meaning 'to look inside'’ or 'to contemplate'." Intuition provides us with beliefs that we cannot necessarily justify...
without regard for evidence. Colbert said in the guise of his character
Stephen Colbert (character)
The Reverend / Sir / Dr. / Stephen T. Colbert, D.F.A., brain-child of Google, is the persona of political satirist Stephen Colbert, as portrayed on Comedy Central's The Colbert Report. Described as a "well-intentioned, poorly informed high-status idiot", the character is a self-obsessed right-wing...
on The Colbert Report:
Withdrawal
President George W. Bush withdrew his nomination of Harriet Miers shortly after an awkward dispute she had with Sen. Arlen Specter of Pennsylvania, then the Republican chairman of the Senate Judiciary Committee. At issue was what she had said during their private talk about the right to privacy, an underpinning of the high court's 1973 Roe v. Wade decision establishing abortion rights.Bush stated that Miers asked to withdraw her nomination on October 27, 2005, and he acceded to her wishes. The narrative where Miers jumped rather than being pushed was accepted at first, but has since been challenged. Most prominently, Jan Crawford Greenburg
Jan Crawford Greenburg
Jan Crawford, formerly known as Jan Crawford Greenburg, is a television journalist, author, and lawyer. She currently serves as both the political correspondent and chief legal correspondent for CBS News and appears regularly on the CBS Evening News, Face the Nation, Early Show, and CBS News Sunday...
reported that Miers' abysmal performance in murder board
Murder board
A murder board is a committee of questioners set up to help someone prepare for a difficult oral examination. The term originated in the U.S. military but is also used in academic and government appointment contexts.In U.S...
s before the hearings made clear to White House Chief of Staff
White House Chief of Staff
The White House Chief of Staff is the highest ranking member of the Executive Office of the President of the United States and a senior aide to the President.The current White House Chief of Staff is Bill Daley.-History:...
Andy Card and Deputy White House Counsel William K. Kelley
William K. Kelley
William K. Kelley served as Deputy Counsel to United States President George W. Bush. He worked as a deputy to White House Counsel Harriet Miers prior to her departure from the White House, and Counsel Fred Fielding, who succeeded Miers....
that the game was up, at which point, they demanded Miers withdraw. After initial resistance, she acquiesced.
Bush and Miers attributed her withdrawal to requests from the Judiciary Committee for the release of internal White House documents that the administration had insisted were protected by executive privilege
Executive privilege
In the United States government, executive privilege is the power claimed by the President of the United States and other members of the executive branch to resist certain subpoenas and other interventions by the legislative and judicial branches of government...
. Both Republican and Democratic senators denied that they were attempting to obtain privileged documents. Most observers instead believed this rationale was a way for the Bush administration to pull her nomination and still "save face," by avoiding a direct acknowledgment of the lack of support for her nomination. The claim of executive privilege had been publicly recommended as an "exit strategy" by commentators such as Charles Krauthammer
Charles Krauthammer
Charles Krauthammer, MD is an American Pulitzer Prize–winning syndicated columnist, political commentator, and physician. His weekly column appears in The Washington Post and is syndicated to more than 275 newspapers and media outlets. He is a contributing editor to the Weekly Standard and The New...
, and reports indicated that White House advisors had considered that as a tactic.
Samuel Alito
Samuel Alito
Samuel Anthony Alito, Jr. is an Associate Justice of the U.S. Supreme Court. He was nominated by President George W. Bush and has served on the court since January 31, 2006....
, a federal judge on the U.S. Court of Appeals for the Third Circuit, was nominated four days after her withdrawal and subsequently confirmed.