Harry Reid Botches Miers Nomination
Harry Reid Botches Miers Nomination
Huge victory for conservatives
In the grand scheme of things, George W. Bush’s nomination of Harriet Miers to the Supreme Court gave Harry Reid and his fellow Democratic senators a golden opportunity. They botched that opportunity and helped deliver an enormous victory to conservatives.
* * *
As we have seen, Democratic leader Harry Reid had a big influence on President Bush’s shocking selection of Miers. Arlen Specter, the Republican chairman of the Senate Judiciary Committee, recounts in his memoir (Never Give In) that Reid first suggested Miers to Bush as the nominee at a meeting at the White House on September 21—twelve days before Bush announced her selection. Specter archly observes:
Reid did not comment on her qualifications, noting only that she was a nice person and returned telephone calls promptly—hardly the strongest substantive recommendation.
Reid also warned, or bluffed, Bush against “prospective nominees who would be filibustered”—against whom, that is, Democrats would supposedly muster the 41 votes needed to prevent cloture on the Senate confirmation vote.
Bush himself says (in Decision Points) that a message he received from “consultations on Capitol Hill” was that he should “seriously consider” Miers. He touts reports that “several senators”—Reid is obviously prominent among them—“had been very impressed by Harriet as she shepherded John Roberts through his interviews on Capitol Hill.” Karl Rove (in his own memoir) states that Reid “told Bush he would support Miers and felt other Democrats would as well.”
With 55 Republicans in the Senate, Reid achieved a huge victory in snookering Bush into selecting a 60-year-old nominee with no judicial experience and no ties to the conservative legal movement. When the nomination immediately ignited a firestorm of conservative opposition, Reid was understandably 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.
It was evident from the outset that Miers’s nomination was in serious peril. As Democratic senator Dick Durbin put it, “I can’t see the endgame. I can’t see how it ends.”
* * *
Reid’s challenge was to perpetuate his victory. That meant, at a minimum, keeping Miers’s nomination alive through her Senate confirmation hearing. Miers’s disastrous meet-and-greet meetings with senators strongly signaled that she would not perform well at a confirmation hearing. Reid would prolong and intensify conservative agony, and inflict severe political damage on the White House, by working to ensure that the hearing took place.
Further, if the White House and Miers saw that she needed Democratic votes to get confirmed, Democrats would be in a strong position to extract concessions from Miers—for example, to recuse herself from important cases that involved issues, such as the constitutionality of the federal partial-birth abortion law, that she might have played some role in during her White House years. Depending how her testimony went, Democrats could then decide whether to provide the necessary votes to confirm her or to allow her nomination to die. But how could they expect to get a subsequent nominee who, from their perspective, was more favorable than Miers?
The obvious worst case for Reid would be for the Miers nomination to die an early death and for Bush to have the opportunity to start afresh. Yet that’s exactly what Reid allowed to happen.
To be sure, Bush always had the prerogative to withdraw Miers’s nomination. But he needed a good reason to do so. The more he thought it likely that Miers would be confirmed, the less likely he would be to pull the plug.
Reid therefore needed to persuade his fellow Democrats—and especially Patrick Leahy, the lead Democrat on the Judiciary Committee—to make Miers’s path to confirmation seem as smooth as possible. That meant discouraging them from putting obstacles in her way. It also meant that Democratic senators should be praising her qualifications (even if they were insincere in doing so) and forecasting her confirmation (even in the unlikely event that they might later decide to defeat it). Perhaps Reid tried. But he certainly didn’t succeed.
Senate Democrats did little to counter the intense criticism of Miers’s nomination. Further, as we saw in my previous post, Leahy joined Specter not only in insisting that Miers rework her “inadequate,” “insufficient,” and “insulting” response to the Senate questionnaire but also in demanding Miers’s own White House records. He thus gave Bush a convenient exit ramp.
As a Republican lawyer on Judiciary Committee staff recently told me: “I was amazed and relieved that Senate Democrats weren’t trying to rescue the Miers nomination.” When he asked his savvy senator why Democrats undermined Miers when it was in their long-term interest to have her, rather than a stronger conservative, on the Court, the senator replied, “They just couldn’t help themselves.”
* * *
When Miers withdrew her nomination, Reid railed that the “radical right wing of the Republican Party drove this woman’s nomination right out of town.” But it was Reid’s own failure to lead his fellow Democrats to foster the appearance that Miers would be confirmed that helped bring an early end to the nomination.
His tendentious rhetoric aside, Reid was correct that the collapse of the Miers nomination was a momentous victory for political conservatives and for the conservative legal movement. George Bush learned that he couldn’t take for granted that conservatives would fall in line and support whomever he nominated to the Supreme Court. Instead, he had to nominate someone who would earn the support of conservatives.
An important shift in power had occurred. That shift would manifest itself in the substitute nomination of Samuel Alito that Bush would make a few days later. It would also play out in Donald Trump’s campaign for the presidency in 2016 and in his three successful Supreme Court nominations.