George W. Bush Makes a Shocking Supreme Court Nomination

How it happened

Whether you are a Republican or a Democrat, you should never take for granted that a president of your political party will sensibly decide who would be the best person to nominate for a Supreme Court vacancy. Whether it’s short-term political considerations, or a rushed decision-making process, or an insular bubble, or intense personal ties, there are lots of things that can warp a president’s judgment.

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My phone rang late on a Sunday evening, after I had finished my usual bedtime reading to my kids. It was one of the outside strategists to the White House whom I had been working with on John Roberts’s confirmation as chief justice. Roberts had just been confirmed and appointed, and George W. Bush now had to pick his nominee to replace Justice Sandra Day O’Connor.

“You need to get in very early tomorrow,” he advised. “The President is going to announce the nominee at 8 a.m. I think it’s going to be Sam.”

I was delighted and surprised by the forecast. I knew “Sam” as Third Circuit judge Samuel Alito. I had met Judge Alito only once—in the hallway of the Mayflower Hotel at a Federalist Society convention in the late 1990s—but I had thoroughly reviewed his judicial record. I regarded him as an outstanding choice and a courageous one. The dominant refrain over the previous two or three weeks, including from First Lady Laura Bush, was that Bush’s new pick for the O’Connor seat “has to be a woman,” so it was surprising that Bush would resist that charge and select Alito.

On Monday morning, I raced into my office and drafted a blog post celebrating Alito’s nomination. At 8 a.m., I tuned in to the live video from the White House and saw Bush announce that he was nominating as the next Supreme Court justice … Harriet Miers, his White House counsel.

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The name of Harriet Miers rings few bells these days. But if I were making a list of the most important events in Supreme Court nomination history since my work as a Senate Judiciary Committee lawyer on Bill Clinton’s nomination of Ruth Bader Ginsburg more than three decades ago, the Miers episode would rank third. The only events that I would rank higher are (1) Senate majority leader Mitch McConnell’s decision, in the immediate aftermath of Justice Antonin Scalia’s death in February 2016, to keep the resulting vacancy open through the presidential election in November, and (2) Senate Democrats’ historically idiotic decision to filibuster Donald Trump’s nomination of Neil Gorsuch in 2017.

I will address the broader significance of the Miers episode in the next post or two. In this post, I will explore how it is that Bush decided to nominate Miers.

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If, as I have argued, Bush’s initial selection of Roberts to fill O’Connor’s vacancy provides a model of how to do the process well, his selection of Miers is a stark example of how to do the process poorly.

Bush’s selection of Roberts culminated a years-long undertaking by a team of top White House officials. The team was open to the entire universe of conservative legal talent. With the assistance of a very talented corps of White House lawyers, it reviewed the records of candidates, consulted with leaders of the conservative legal movement, interviewed a select list of candidates, and provided Bush detailed memos on the records of those it recommended he consider. The White House maintained strict confidentiality throughout.

When the death of Chief Justice William Rehnquist in early September led Bush to renominate Roberts for Rehnquist’s seat, Bush started afresh to pick a new nominee for O’Connor’s seat. As he puts it (in his memoir Decision Points), “I felt strongly that I should replace her with a woman…. Laura agreed—and shared her views with the press.” Bush “instructed Harriet [Miers] and the search committee to draw up a new list with more women”—and to review the new candidates in the short space of two or three weeks and in the midst of the Roberts confirmation process. By Bush’s account, he ran into “frustrating roadblocks” on one female candidate after another—intense Democratic opposition to one, a husband’s financial problems on another—and before he knew it, he found himself focusing on someone who wasn’t even on the list, Miers herself.

Miers was one of the “key members of [Bush’s] Texas political family.” She had been with him through thick and thin for the previous dozen years, as general counsel to his transition team as he became Texas governor in 1995, as his appointee chairing the Texas Lottery Commission, as his personal lawyer, and at his side—including on 9/11—in key positions throughout his presidency, first as White House staff secretary, then as deputy chief of staff for policy, and since November 2004 as White House counsel. Miers had also long lavished praise on Bush: “You are the best governor ever—deserving of great respect,” she wrote him in 1997.

Rather than consult with leaders of the conservative legal movement, Bush says that he received two “messages [that] came from our consultations on Capitol Hill”: “think about picking a lawyer from outside the bench,” and “seriously consider” Miers, whom “several senators had been very impressed by … as she shepherded John Roberts through his interviews on Capitol Hill.”

The only plausible reasons that Bush would pay any attention to these “messages” is that they enabled him to satisfy his strong predilection for picking a woman and, at the same time, to reward Miers. Why else would Bush credit the notion that he should pick “a lawyer from outside the bench,” when his own team of senior advisers, in compiling the original list of candidates that consisted entirely of judges, had sensibly determined that a high-quality judicial track record is the best indicator of a high-quality candidate? Why else would he think that the fact that “several senators” were said to have “been very impressed by” Miers “as she shepherded John Roberts through his interviews on Capitol Hill” was probative of anything significant?

Bush doesn’t say who these “messages” came from. But Karl Rove (in his own memoir) states that “Senate Democratic leader Harry Reid told Bush he would support Miers and felt other Democrats would as well.” Reid’s own spokesman would confirm that Reid had “urged” Bush to consider Miers. In a Senate with 55 Republicans—a Senate that had just confirmed Roberts by a margin of 78 to 22—Bush seems to have been more interested in securing an easy confirmation for a close friend than in selecting the best available candidate.

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In the aftermath of Bush’s renomination of Roberts to Rehnquist’s seat, newspapers reported, and activists on both sides buzzed about, various possible candidates that Bush would nominate for O’Connor’s seat. Miers’s name was not mentioned in any article until Thursday, September 29—four days before Bush’s announcement—and I first heard talk that she was a serious candidate at the White House reception after John Roberts’s swearing-in that same day. I thought about writing a blog post about why nominating Miers would be an atrocious blunder, but I decided that the point was so obvious that her candidacy couldn’t really be serious. So why bother getting on the wrong side of the White House counsel?

As I watched Bush’s announcement ceremony on Monday, October 3, I immediately sank into a stupor of anger and disbelief. I would have plenty of company that morning and in the days and weeks ahead.