Harriet Miers - Supreme Court Nomination and Withdrawal

Supreme Court Nomination and Withdrawal

On July 1, 2005, Supreme Court Justice Sandra Day O'Connor announced her intention to retire upon the confirmation of a successor. Bush appointed Miers as head of the search committee for candidates to replace O'Connor. On July 19, 2005, Bush announced John G. Roberts, Jr. as O'Connor's replacement. After William H. Rehnquist died of thyroid cancer on September 3, Bush withdrew this nomination and renominated Roberts for Chief Justice of the United States. The Senate confirmed the nomination on September 29.

Meanwhile, Bush was considering nominating Miers as O'Connor's successor, factoring into account suggestions by several senators that the nominee should come from outside the appellate court system. This caused several commentators to draw parallels with the 2000 election, when Dick Cheney, the head of Bush's vice-presidential search committee, was ultimately selected as the running mate.

On October 3, 2005, Bush nominated Miers to serve as an Associate Justice of the Supreme Court. Miers' nomination was criticized by people all over the political spectrum based on her never having served as a judge, her perceived lack of intellectual rigor, her close personal ties to Bush, and her lack of a clear record on issues likely to be encountered as a Supreme Court Justice. Many notable conservatives vigorously criticized her nomination, and numerous conservative groups normally considered part of Bush's political base planned to mount an organized opposition campaign.

Miers met with senators after her nomination was announced, and in those meetings she was ill-prepared and uninformed on the law. Senator Tom Coburn told her privately that she "flunked" and " going to have to say something next time." In mock sessions with lawyers, Miers had difficulty expressing her views and explaining basic constitutional law concepts. Miers had no experience in constitutional law, and did not have extensive litigation experience; at her Texas law firm, she had been more of a manager. Miers had rarely handled appeals and did not understand the complicated constitutional concepts senators asked of her. To White House lawyers, Miers was "less an attorney than a law firm manager and bar association president."

Early one-on-one meetings between Miers and the members of the Senate Judiciary Committee were said to have gone poorly, and the White House considered suspending them to focus on preparation for the confirmation hearings. In an unprecedented move, Senate Judiciary Committee Chairman Arlen Specter and ranking Democrat Patrick Leahy also requested that Miers re-do some of her answers to the questionnaire submitted to her by the Committee, noting that her responses were "inadequate," "insufficient," and "insulting" because she failed or refused to adequately answer various questions with acceptable accuracy or with sufficient detail. Miers also privately expressed a belief in the right to privacy to the pro-choice Arlen Specter, only to later deny that she had communicated that position. Her answers also included an error on constitutional law where she mentioned an explicit constitutional right for proportional representation; though many court rulings have found that legislative and other districts of unequal population violate the equal protection clause, the right to proportional districts is not explicitly mentioned in the United States Constitution.

After Miers failed in these private meetings, Republican Senators Lindsey Graham and Sam Brownback began drafting a letter asking the President's office to turn over legal memoranda and briefs Miers had written for Bush, in order to elucidate her views on political matters. Brownback and Graham knew the memos were protected by executive privilege, that the White House was not required to turn them over, and that Miers could refuse to deliver the memos and then ostensibly step down on principle. Miers would later use this request as part of a face-saving exit strategy for stepping down. In her letter withdrawing her nomination, she pointed to the senators' request for confidential documents as potentially damaging the executive branch's independence.

Senator Charles Schumer (D-NY) stated shortly after the meetings that "I think, if you were to hold the vote today, she would not get a majority, either in the Judiciary Committee or on the floor." However, Specter, the committee chairman, rejected the notion that Miers' nomination was shaky. He said that most senators were waiting for the hearings before making up their mind. "There are no votes one way or another," he said on CBS' Face the Nation. On October 19, 2005, Specter and Leahy announced their intent to begin confirmation hearings for Miers on November 7, 2005.

On October 27, 2005, the White House announced that Harriet Miers had asked President Bush to withdraw her nomination, citing fears that the nomination would create a "burden for the White House and its staff and it is not in the best interest of the country." President Bush stated that the Senate's interest in internal White House documents "would undermine a president's ability to receive candid counsel" and that he had "reluctantly accepted" her request. Miers was the first Supreme Court nominee to withdraw since Douglas H. Ginsburg in 1987 and the seventh to do so in U.S. history.

Bush nominated Samuel Alito for the seat on October 31, 2005, and he was confirmed on January 31, 2006. Miers remained as White House Counsel for another year until announcing her resignation on January 4, 2007.

See also: George W. Bush Supreme Court candidates