Conservatives Revolt Against Miers Nomination

A resounding no to George W. Bush's "trust me"

“I’ve known Harriet for more than a decade. I know her heart. I know her character.”

So declared George W. Bush on October 3, 2005 in wrapping up his remarks announcing his decision to nominate his White House counsel Harriet Miers to replace Justice Sandra Day O’Connor.

But conservatives in general, and the conservative legal movement in particular, were no longer going to accept a Republican president’s “trust me” assurance on a Supreme Court nominee. We aimed for a nominee who had demonstrated the intellectual heft to be a force on the Court, preferably someone who had already been tested, someone who could, say, be counted on to recognize that Roe v. Wade was a constitutional travesty and to have the courage and skill to craft one day a powerful majority opinion overturning it.

Harriet Miers appeared to fall shockingly short of the mark.

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“No more Souters!” That was the rallying cry among conservatives in anticipation of Supreme Court vacancies during George W. Bush’s presidency. Those suspicious of the candidacy of Bush’s first White House counsel Alberto Gonzales shared a joke: “You know what the English translation of the Spanish word Gonzales is, right? … Souter.”

Bush’s father, George H.W. Bush, had plucked David H. Souter from obscurity and nominated him to replace Justice William J. Brennan Jr. in 1990. Amid widespread doubts about the stealth pick, the Bush 41 White House assured conservatives that they should trust the president’s judgment. “A home run for conservatives,” declared White House chief of staff John Sununu, who as New Hampshire governor had appointed Souter to the state’s supreme court. (I can’t help but envision Sununu jumping to his feet at a baseball stadium whenever a long foul ball is hit.)

From a conservative perspective, Souter quickly turned out to be a disaster. In just his second term on the Court, he co-authored the joint opinion in Planned Parenthood v. Casey that declined to overturn Roe v. Wade and that adopted a breathtakingly grandiose conception of the Court’s role. He didn’t get better after that, and he was a reliable member of the liberal bloc on the Court when the two Supreme Court vacancies arose in 2005.

“No more Souters!”

But it wasn’t Souter alone who was the problem. Souter instead stood in for a long line of failed or middling justices appointed by Republican presidents in the preceding decades—Harry Blackmun and John Paul Stevens most prominently, but also Warren Burger, Lewis F. Powell Jr., Sandra Day O’Connor, and Anthony Kennedy.

As the defeat of Robert Bork’s nomination in 1987 showed, Democratic control of the Senate could present an obstacle. (O’Connor was alone among these in being confirmed by a Senate under the control of Republicans.) But in 2005, Republicans had a 55-seat majority in the Senate, a majority that judicial-confirmation fights had helped them earn. Were they now going to waste that majority?

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Harriet Miers was a highly accomplished lawyer but a virtual unknown in the conservative legal world. Bush’s introduction of her did little to fill the void and to distinguish her in conservative eyes from thousands of other lawyers. Some of it seemed boilerplate: “Before state and federal courts, she has tried cases, and argued appeals that covered a broad range of matters.” Other parts highlighted establishmentarian credentials that would render her suspect: “She’s been a leader in the American Bar Association.” Her role as a “pioneer” among women lawyers in Texas earned her many notable “firsts”—“the first woman to lead a large law firm in the state of Texas,” “the first woman president of the Dallas Bar Association,” “the first woman elected president of the State Bar of Texas”—but it was difficult to see how any of those meant that she would be a high-quality Supreme Court justice.

The Miers nomination ignited a firestorm of conservative opposition. As the Washington Post reported:

President Bush’s nomination of Harriet Miers for the Supreme Court splintered the Republican Party's conservative base, with reaction from key senators and groups ranging from hostility to silence to praise.

Several right-leaning lawmakers and activists seemed bewildered by the choice of a relatively little-known White House counsel who has given money to Democratic candidates and who was recommended for the job by Minority Leader Harry M. Reid(D-Nev.). While numerous senators urged colleagues to withhold judgment until more is known, some outsiders vented their dismay that the president had not chosen someone with unmistakably conservative credentials.

“I know of nothing in Harriet Miers’s background that would qualify her for an appointment to the Supreme Court,” said Roger Pilon, founder of the libertarian Cato Institute's Center for Constitutional Studies. William Kristol, editor of the influential conservative magazine Weekly Standard, summarized his reaction as “disappointed, depressed and demoralized.”

George Will’s next-day column was searing:

It is not important that she be confirmed because there is no evidence that she is among the leading lights of American jurisprudence, or that she possesses talents commensurate with the Supreme Court's tasks. The president's "argument" for her amounts to: Trust me. There is no reason to, for several reasons.

He has neither the inclination nor the ability to make sophisticated judgments about competing approaches to construing the Constitution. Few presidents acquire such abilities in the course of their pre-presidential careers, and this president particularly is not disposed to such reflections.

Furthermore, there is no reason to believe that Miers's nomination resulted from the president's careful consultation with people capable of such judgments. If 100 such people had been asked to list 100 individuals who have given evidence of the reflectiveness and excellence requisite in a justice, Miers's name probably would not have appeared in any of the 10,000 places on those lists.

Efforts by senior White House staffers to allay concerns backfired:

The conservative uprising against President Bush escalated yesterday as Republican activists angry over his nomination of White House counsel Harriet Miers to the Supreme Court confronted the president’s envoys during a pair of tense closed-door meetings.

A day after Bush publicly beseeched skeptical supporters to trust his judgment on Miers, a succession of prominent conservative leaders told his representatives that they did not. Over the course of several hours of sometimes testy exchanges, the dissenters complained that Miers was an unknown quantity with a thin resume and that her selection—Bush called her “the best person I could find”—was a betrayal of years of struggle to move the court to the right.

At one point in the first of the two off-the-record sessions, according to several people in the room, White House adviser Ed Gillespie suggested that some of the unease about Miers “has a whiff of sexism and a whiff of elitism.” Irate participants erupted and demanded that he take it back.

“At two stormy meetings on Friday,” the New York Times reported, lawyers for Republican senators on the Judiciary Committee “were unanimous in their dismay over Ms. Miers’s qualifications and conservative credentials” and were even “doing research to rebut the ‘talking points’ the White House ha[d] provided for senators.”

Meanwhile, Democratic leader Harry Reid was gloating:

“I have to say without any qualification that I’m very happy that we have someone like her,” Reid told reporters as he greeted Miers in the Capitol.

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Things had changed a lot since 1990. Back then, the conservative legal movement was in its infancy, and the pre-Internet technology was primitive. Even if you were determined to do so, it would have been cumbersome to undertake to review David Souter’s judicial record. (If your law firm had a Lexis terminal, you could charge a costly search to your own account and print out cases at a glacial pace.) And, given that his nomination had already been made, what would be the point? How and to whom would you communicate any concerns you had? How could you possibly expect to derail his nomination? What choice did you have but to hope that the White House knew what it was doing?

By 2005, the conservative legal movement was flourishing. In George W. Bush’s first term, conservatives had mobilized in support of his lower-court nominees. But they were now showing that their commitment was to the cause, not to Bush personally. The very means—blog posts, coalition calls, emails, Internet petitions, and media ads—that had been deployed in support of Bush’s nominees were now being used to generate and coordinate powerful opposition to the Miers nomination.

The larger lesson that Bush would learn is that a Republican president needed to select Supreme Court nominees who had earned the approval of the conservative legal movement. Just over a decade later, Donald Trump would show that he understood that lesson.