WASHINGTON (ABP) — Conservatives breathed a sigh of relief Oct. 27 after the surprise announcement that White House Counsel Harriet Miers had withdrawn her nomination for an open seat on the Supreme Court.
But her change of heart — in the face of mounting criticism from conservatives who doubted her qualifications — left a giant question mark over what sort of person President Bush will now tap to replace moderate Justice Sandra Day O'Connor, who has announced she will retire as soon as her successor is installed.
Most observers, and especially influential Christian conservatives, expect Bush to name an experienced candidate with unquestioned conservative credentials.
O'Connor's seat is a pivotal one on a court that is often divided 5-4 on contentious social issues. A justice with a conservative social agenda replacing O'Connor — who often voted to support abortion rights, gay rights and church-state separation — could change the face of American jurisprudence for decades to come.
The White House announced Miers' withdrawal as Washington's business day began, immediately swamping all other news in the capital. White House Press Secretary Scott McClellan told reporters that Miers had phoned Bush the evening of Oct. 26 to inform him of her decision, and formalized it with a letter the next morning.
“I have been greatly honored and humbled by the confidence that you have shown in me and have appreciated immensely your support and the support of many others,” Miers wrote. “However, I am concerned that the confirmation process presents a burden for the White House and our staff that is not in the best interest of the country.”
Bush, in a statement, said he had “reluctantly accepted” her decision.
Both Bush and Miers blamed the move on the Senate Judiciary Committee, whose members must vote on nominees to federal courts before the entire Senate does. The committee's chairman, Pennsylvania Republican Arlen Specter, and ranking member, Vermont Democrat Patrick Leahy, had indicated they could not learn information essential to judging Miers' qualifications for the post without probing her work as the White House's chief lawyer.
“It is clear that senators would not be satisfied until they gained access to internal documents concerning advice provided during her tenure at the White House — disclosures that would undermine a president's ability to receive candid counsel,” Bush said.
But the move came amid pressure from Bush's right-wing base. A growing chorus of conservative commentators and activists had requested the White House withdraw Miers, questioning both her commitment to a solidly conservative judicial philosophy and her professional qualifications for the post. It came only days after a coalition of conservative groups launched the website WithdrawMiers.org.
The scenario — Miers voluntarily withdrawing her nomination and citing issues of executive privilege — had actually been recommended by several conservative commentators recently as a way for Miers and the White House to save face.
The issue of executive privilege and a stalemate with the Judiciary Committee is “really a red herring,” said Sen. Ted Kennedy (D-Mass.), one of the panel's senior members, speaking to reporters just off the Senate floor Oct. 27.
One of the few senators strongly to support Miers' nomination, Texas Republican John Cornyn, blamed its derailment on “pundits” who “want the president to pick a fight” with Democrats by nominating a well-known judicial conservative to replace O'Connor.
“What some went so far as to suggest is that they would want somebody who will rule in a particular way [on contentious issues such as abortion rights and gay rights], and that is an unprincipled position,” Cornyn said in a Capitol press conference the same day.
Approaching Miers' situation from the opposite ideological perspective, Kennedy seemed to concur with Cornyn. “The issue really was the extreme right wing of the president's party putting a litmus test on Supreme Court nominees,” he said.
Miers' withdrawal came only a day after the Washington Post published excerpts from speeches she had given in the early 1990s, while she served as president of the Texas Bar Association and was one of Dallas' most prominent attorneys. In one speech, she seemed to express support for abortion rights.
However, in 1989 while she was a candidate for a Dallas City Council seat, Miers answered a questionnaire from a pro-life group in part by saying she would support an amendment to the federal Constitution that would ban legalized abortion except to save the mother's life.
In the same 1993 speech, she articulated support for a principle of “self-determination” for individuals when religious beliefs or moral principles come in conflict with the law — acknowledging, for instance, that the government could not force religious observance on school children.
In another speech around on the topic of women in leadership, she praised female political leaders — such as liberal Supreme Court Justice Ruth Bader Ginsburg, then-first lady Hillary Rodham Clinton, and conservative Sen. Kay Bailey Hutchison (R-Texas).
Such revelations about Miers' thinking and her lack of a “paper trail” or history of articulating her judicial philosophy led many conservatives to doubt her fitness. The doubts persisted despite her support from Bush and active participation in a pro-life evangelical church in Dallas. Many conservative intellectuals had opposed Miers since Bush announced her nomination on Oct. 3.
Lukewarm support for Miers from many conservative Christians eventually dissolved into open rebellion. Concerned Women for America, led by Christian activist Beverly LaHaye, called Wednesday night for Miers to withdraw. Just two hours later, she did.
In a statement released after Miers' decision, Focus on the Family founder James Dobson called it a “wise decision.” While the Colorado-based religious broadcaster had earlier tried to use his considerable weight in the evangelical community to back Miers, he said he had begun to have doubts.
“In recent days, I have grown increasingly concerned about her conservative credentials,” Dobson said. He cited the abortion speech and her expressions of “so much praise for left-wing feminist leaders” as reasons that he now realizes he “would not have been able to support her candidacy.”
Such social conservatives — who supported Bush overwhelmingly in the 2000 and 2004 elections — “want a [Supreme Court] candidate who, coming in, they know absolutely certain will be pro-life and anti-homosexual,” said Derek Davis, director of the J.M. Dawson Institute of Church-State Studies at Baylor University, in a telephone interview Oct. 27. “The problem [with Miers] has been that all these ultraconservatives were not happy with her because she was not the home-run candidate that they thought they were going to get.”
The question, then, becomes: Who will Bush be able to nominate successfully, given the dynamics of the Miers debacle?
Like Democrats, progressive-to-liberal interest groups denounced the Miers withdrawal Oct. 27 as caving to pressure from the far right.
“We know that Religious Right leaders are bitterly opposed to ensuring Americans' right to self-determination on questions of religion and lifestyle,” said Barry Lynn, director of Americans United for Separation of Church and State, in a statement. “They want to make all the important decisions and impose those choices on the rest of us. It's no wonder they reacted to Miers' remarks with such hostility.”
Many progressives and liberals called on Bush to nominate a consensus candidate for the spot. “I think there's an extraordinary opportunity for this president, at this time, to bring the country together with a Supreme Court nomination,” Kennedy told reporters. “Whether we're going to have a political battle or a political struggle is in the hands of the president of the United States.”
But finding a candidate simultaneously acceptable to Democrats, moderate Republicans and conservative Christian activists may be threading a very fine needle, according to Davis.
“He needs to find somebody who's to the right of Harriet Miers, and obviously so. But he can't name somebody who's going to be perceived by the country as another Robert Bork,” Davis said, referring to the Ronald Reagan appointee to the Supreme Court whose nomination failed miserably in 1984 because of his ultraconservative views on judicial philosophy.
“And I don't know who that person is,” Davis concluded.