Samuel Alito Gets Big Boost from Harriet Miers Fiasco
George W. Bush's third pick for O'Connor seat unifies Republicans
The failure of a Supreme Court nomination often puts the White House in a bind. But the failure of the Harriet Miers nomination freed George W. Bush’s White House from the bind it had put itself in.
The Miers debacle also ended up helping Samuel Alito considerably—and not just in the obvious way of requiring George W. Bush to make a new nomination for Justice Sandra Day O’Connor’s seat.
On that new nomination, the mantra “it has to be a woman” was silenced. Bush also knew that he had to make a pick conservatives would celebrate. He settled quickly on Alito.
The massive gap between Alito’s qualifications for the nomination and Miers’s qualifications also meant that Alito immediately won the respect of even those Republicans who would have preferred a female nominee or a less conservative nominee.
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President Bush’s decision on his third nomination for O’Connor’s seat was an easy one. Alito had been the runner-up when Bush first named John Roberts to replace O’Connor in July 2005. When Chief Justice Rehnquist’s death in early September led Bush to re-nominate Roberts to be chief justice, Bush fixated on the notion that his next nominee for O’Connor’s seat had to be a woman. But he eliminated, for one reason or another, all the female candidates on the long list that had been drawn up for him, and he then improvised by nominating Miers.
While Miers’s nomination was in the process of collapsing, Bush would ordinarily have consulted closely with his White House counsel on whom to nominate next. But Miers was his White House counsel, so he couldn’t draw on her advice. The White House lawyers he did consult persuaded him that there was no point in revisiting the list of female candidates he had already eliminated. It was time to pick the best candidate, male or female. Bush decided that was Alito. The fact that Miers herself had favored Alito over Roberts for the initial nomination in July helped make that decision easy. So did the enthusiastic reception that Bush knew conservatives would give an Alito nomination.
Miers asked Bush to withdraw her nomination on Thursday, October 27. Bush decided almost immediately on Alito. He announced his nomination of Alito just two business days later, on Monday, October 31.
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Bush’s nomination of Alito immediately lifted conservatives from the slough of despond in which the Miers nomination had mired them for several weeks. Elation reigned. The bitter schism between the White House and conservatives was suddenly healed.
As I put it in a celebratory blog post that I titled “Congratulations, President Bush!”:
In selecting Third Circuit judge Samuel A. Alito Jr. for the Supreme Court, President Bush has made a truly outstanding nomination that deserves widespread acclaim. By any objective criteria, it is doubtful that there is anyone now or in recent decades (yes, not even Chief Justice Roberts) whose experience and qualifications better prepare him for the Supreme Court.
Alito and his record were well known to, and deeply admired by, influential conservatives. He had fifteen years of decisions as a Third Circuit judge on top of more than a dozen years in a variety of important executive-branch positions: line prosecutor, assistant Solicitor General, deputy assistant attorney general in the Office of Legal Counsel, and United States Attorney in New Jersey. He had also frequently taken part in Federalist Society events.
In nominating Miers, Bush seemed to have been seeking an easy confirmation. In nominating Alito, he was ready to take the fight to the Democrats. He knew that Alito would win less Democratic support than Roberts did. But he also knew that a Senate with 55 Republicans should succeed in confirming Alito.
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If Bush had nominated Alito instead of Miers in early October, that nomination would have been received much less well than his actual nomination weeks later. In particular, the many voices in the Republican party insisting that the nominee to replace O’Connor should be a woman would have grumbled. That grumbling would have fueled Democrats’ efforts to depict Alito as hostile to women, and his path to confirmation might have been more treacherous.
After the fiasco of Miers’s nomination, hardly anyone dared object to Alito on the ground that “it should have been a woman.” On the contrary, his stellar qualifications—stellar by any standard, not merely compared to Miers’s—unified Republicans around his nomination.