The Nine (51 page)

“Do you believe she would vote to overturn
Roe v. Wade
?”

“Absolutely,” said Kinkeade.

“I agree with that,” said Hecht.

The electronically assembled conservatives were mollified—for the moment.

News of the conference calls quickly leaked. The press attention spooked Kinkeade from further campaigning for Miers’s confirmation. Hecht was energized by it.

In the next week or so, Hecht gave more than 120 interviews on Miers’s behalf and proved to be a mixed blessing as an advocate. Hecht had served on the Texas court since 1988 and established himself as the most extreme right-wing voice on an already conservative court. He spoke often about Miers’s devout faith and her decision, late in life, to become baptized in his evangelical church. But his message was compromised somewhat by his ambiguous status in her life. Hecht’s stream-of-consciousness ramblings to reporters somehow provided both too little information—and too much. “We are good, close friends,” Hecht told the
Los Angeles Times.
“And we have been for all these years. We go to dinner. We go to the movies two or three times a year. We talk. And that’s the best way to describe it. We are not dating. We are not seeing each other romantically. Not currently.” Hecht’s vigorous and lonely advocacy raised the possibility that the only one the White House could find to endorse Miers was her boyfriend. (Hecht apparently had a complicated social life. He was also the sometime boyfriend of Priscilla Owen, his former colleague on the Texas Supreme Court, who had recently been confirmed to the Fifth Circuit and was a favorite of conservatives for the nomination that went to Miers.)

The absence of pro-Miers surrogates reflected the nature of her work for Bush, both in Texas and in Washington, as well as her personality. In Austin, Bush gave her the part-time job of supervising the state’s troubled lottery system, but her real work for him consisted of private legal counseling—not the kind of activity that produces a body of public accomplishments. Similarly, as staff secretary and then deputy chief of staff at the White House, Miers operated as a coordinator and traffic cop more than as an initiator of ideas. No one could testify to her views on constitutional law, because she had never been called on to have any. Even when Miers filled out her questionnaire for the Senate, listing the significant cases she had litigated, most of the trials were business disputes that settled. She had never argued a case in the United States Supreme Court or even in the Texas Supreme Court.

It quickly became apparent that the White House had no backup plan for pushing Miers’s nomination. Rove and the others figured that Hecht’s word would calm any conservative uncertainty, and Bush counted on the Republicans who controlled the Senate to fall into line, just as they had on every other issue for the past four-and-a-half years. Crucially, though, Bush failed to see that Iraq and Katrina had crippled his influence in Congress. The nomination of Miers reflected Bush’s arrogance, his sense that vouching for his personal lawyer would be all that was necessary to bring the Senate along. The president had miscalculated his own remaining clout—and the importance of the Supreme Court to his more ardent supporters. On this issue above all, a “Trust me” from George W. Bush would simply not be enough.

Although the right tried to phrase its complaints about Miers as a matter of qualifications rather than of ideology, its sleight of hand amounted to little more than a pretense. In recent years, the Supreme Court had been populated exclusively with experienced appellate judges (despite Clinton’s hapless attempt to break the trend), but in the broader sweep of history Miers’s qualifications were hardly unusual. Lewis Powell had never worked in government and had, like Miers, served prominently in local and national bar associations; William Rehnquist had a routine civil practice in Phoenix, followed by his tenure as an assistant attorney general, heading the Office of Legal Counsel; Byron White spent even less time as deputy attorney general following an unremarkable career as a private lawyer in Denver. For the movement conservatives, the problem with Miers was not her lack of qualifications but their own lack of certainty that she would follow their agenda on the Court.

Still, Miers’s rocky debut on the national scene did not immediately doom her nomination. Harry Reid welcomed the choice, as did some Republican senators, like John Cornyn of Texas. On the Wednesday after she was nominated, Miers paid her first courtesy call on her home-state senator, and Cornyn embraced her publicly, playing a populist card on her behalf. She filled a “very real and important gap” on a Supreme Court dominated by Ivy Leaguers and Beltway intellectuals, he said after she left his office; he asked conservatives to “reserve judgment” and said that Miers had “ample qualifications” and was an “engaging person.” With few exceptions, senators did what came naturally: they refrained from making commitments one way or the other.

But the conservative rebellion was just starting. Ken Mehlman, the chairman of the Republican National Committee, and his predecessor, Ed Gillespie, attended a pair of gatherings of conservative activists in Washington, and both ran into a torrent of complaints about Miers. “For the president to say ‘Trust me,’ it’s what he needs to say and has to say, but it doesn’t calm the waters,” said Grover Norquist, the head of Americans for Tax Reform and the host of one of the meetings. “I told Mehlman that I had had five ‘trust-mes’ in my long history here,” Paul Weyrich, the host of the other luncheon, remarked, referring to the nominations of Stevens, O’Connor, Kennedy, and Souter as the others. “And I said, ‘I’m sorry, but the president saying he knows her heart is insufficient.’ ” When Gillespie told his group that there was a “whiff of sexism and a whiff of elitism” about the complaints, he was nearly shouted down with demands that he apologize for the slur. Mehlman replied by citing Bush’s decade-long friendship with Miers: “What’s different about this trust-me moment as opposed to the other ones is this president’s knowledge of this nominee.”

This conservative outcry against Miers in October was nearly identical to the one against the possible nomination of Alberto Gonzales in July. As with Gonzales, Miers’s critics on the right could not point to any unacceptable positions that she had taken; also as with Gonzales, White House officials watched with astonishment a colleague they knew to be one of the most fervent conservatives on the staff portrayed as a closet liberal.

Facts played little part in the assault on Miers. The public statements about her, like those of her friend Nathan Hecht, suggested that she held views precisely in line with those who were most outraged by her nomination. The record of her single campaign for the Dallas City Council, while sparse, bore out Hecht’s summary of her views. In response to a questionnaire from Texans United for Life, Miers had said she would support a constitutional amendment to overturn
Roe v. Wade
, that she supported denying public funds to prochoice groups, and that she would use her office “to promote the prolife cause.” It was not enough. The conservative movement against Miers fed on itself and grew.

For the most part, Democrats simply chortled, relishing the intramural quarrel on the other side of the aisle. They made sure that reporters saw the fawning notes that Miers had written to Bush during his years as governor. “Hopefully, Jenna and Barbara recognize that their parents are ‘cool’—as do the rest of us,” she wrote in one. “Keep up the great work. Texas is blessed!” And “You are the best governor ever—deserving of great respect!” And “You and Laura are the greatest!”

Democratic senators raised questions about cronyism, which were especially resonant in the aftermath of Katrina. But notably, not a single Democratic senator announced his or her intention to vote against Miers. As the right-wing attacks on her grew more frenzied, some Democrats began to think that perhaps Miers really was a secret moderate and thus the best they could hope for as a Bush nominee.

Specter set the start of Miers’s hearings for November 7, and as the date grew closer the chairman of the Judiciary Committee made it clear that he was unimpressed with Miers. Unlike most of his fellow Republicans, the dyspeptic Specter cared more about her qualifications than about her ideology. He noted publicly that she would need a “crash course” on constitutional law, which was not something that anyone could have said about John Roberts. On October 19, Specter and Patrick Leahy, the ranking Democrat on the committee, sent Miers a nasty letter complaining about several of her answers on her questionnaire. They wanted more detail on “the nature and objectives” of all organizations to which she had belonged and “any and all communications, including those about which there have been recent press reports, in which friends and supporters of yours, among others, were said to have been asked by the White House to assure certain individuals of your views.” In other words, they wanted to know about Hecht’s promises that she would vote to overrule
Roe
. The senators gave Miers until October 26 to complete her answers.

Through the second and into the third week of October, Miers continued to meet privately with senators and to prepare for her public testimony. Neither the meetings nor the rehearsals went especially well. Miers lacked Roberts’s charm as well as his deep knowledge of constitutional law—which allowed him to summarize the state of the law at length without letting on much about his own views—and she did little in person to help her cause.

Still, despite the predictions of her increasingly desperate enemies, Miers likely would have handled the hearings with relative ease. Congressional hearings almost always reflect better on the witness than on the senators, who generally come across (with some reason) as pompous and uninformed. Hostile cross-examination from conservatives would almost certainly have evoked sympathy for the nominee. Miers’s personal story of triumph over adversity, like Thomas’s fourteen years earlier, would have counted for a great deal with the public. The forty-four Democrats in the Senate, figuring that Miers was the best they could do (and already sixty years old), would probably have voted overwhelmingly to confirm. Even perfunctory lobbying by Bush would have produced a substantial number of Republican votes. By mid-October, Miers’s confirmation looked likely—if she could get to a vote.

That was why her enemies in the conservative movement were determined to prevent that vote from ever taking place. On October 21, the syndicated columnist Charles Krauthammer, a conservative opposed to Miers, wrote, “We need an exit strategy from this debacle. I have it.” Senators should ask for “privileged documents from Miers’s White House tenure,” and the president should refuse to turn them over. The request could create a conflict “of simple constitutional prerogatives: The Senate cannot confirm her unless it has this information. And the White House cannot allow release of this information lest it jeopardize executive privilege. Hence the perfectly honorable way to solve the conundrum: Miers withdraws out of respect for both the Senate and the executive’s prerogatives.”

The idea was breathtakingly cynical—a more or less open fraud—but it served the conservatives’ purpose. Republicans had been complaining for years that Democratic filibusters were denying Bush’s judicial nominees “up-or-down votes” the president even used that phrase in his State of the Union address in 2005. Yet the exact same people who were complaining about the denial of votes to Bush’s other judicial nominees were mobilizing to deny just such a vote to the White House counsel, who helped select most of the other would-be judges. But to the conservatives, nothing mattered—not consistency, not fairness, not the fate of an otherwise allied figure—except getting guaranteed control of the Supreme Court. The “Krauthammer solution,” as it became known, was put into effect.

One person who could have stopped the railroading of the nominee was Miers herself. In 1987, Robert Bork refused to withdraw even when it became clear that he would lose in the Senate, and the recorded vote went forward, a 58–42 defeat. In this case, it was by no means clear that Miers would lose. But at a fundamental level, Miers always acted more as Bush’s attorney than as an independent actor. A lawyer always puts a client’s interests ahead of his or her own, and Bush’s priority was pleasing his most conservative supporters, particularly when it came to the Supreme Court. Miers would not force Bush to disappoint his base, even at great personal cost. She would withdraw as a nominee.

At 8:30 p.m. on Wednesday, October 26, twenty-three days after Miers was nominated, she called Bush to tell him that she would drop out. For the moment, the decision remained their secret, and later that evening the White House even submitted the answers to the senators’ follow-up questions. But the next morning, they executed the Krauthammer solution. Miers wrote a letter to Bush saying that senators were planning on asking about her service in the White House. “I have steadfastly maintained that the independence of the Executive Branch be preserved…. Protection of the prerogatives of the Executive Branch and continued pursuit of my confirmation are in tension. I have decided that seeking my confirmation should yield.” In a statement issued the same day, Bush “reluctantly accepted” Miers’s withdrawal.

The next day, Friday, October 28, Lewis “Scooter” Libby, the vice president’s chief of staff, was indicted in the CIA leak investigation for perjury and obstruction of justice, ending perhaps the worst week of the Bush presidency. The Miers debacle and the Libby charges took place while the Gulf Coast remained in extremis and the Iraq disaster continued. Facing similar crises, other presidents had found refuge in moderation, in bipartisanship, in gestures of conciliation to political adversaries.