by Peter Baker
Among those affronted by the selection of Miers was Cheney. While his views were tempered somewhat by those of David Addington, who shared a sort of kindred-spirits relationship with Miers as fellow graduates of non-elite law schools, Cheney did not view this as a wise choice. He had spent more than four years searching for the best and the brightest conservative minds to put on the court—at Bush’s request. Cheney believed in curbing the liberal tendencies of the bench, if for no other reason than to respect the executive branch’s power to wage the war on terror. The Supreme Court’s intrusion into a wartime president’s defense of the nation in Hamdi only reinforced the profound consequences of nominating the right people. And the president’s onetime personal lawyer, in his mind, was not among them.
Bush anticipated that Cheney would not be thrilled.
“You probably aren’t going to agree with this, Dick,” Bush told him, “but I’ve decided to go with Harriet.”
“Well, Mr. President,” Cheney said simply, “that’s going to be a tough sell.”
BUSH TRIED TO figure out just how tough a sell. Even as the Senate Judiciary Committee voted to approve Roberts’s nomination on September 23, William Kelley, the deputy White House counsel, called Leonard Leo, one of the Four Horsemen, to take the temperature on Miers. Leo said he thought it would be tough. After hanging up, he thought about it and called back to say they should talk more. Leo and Kelley met the next morning at the Ritz-Carlton in Tysons Corner outside Washington for two and a half hours. “This is going to be a real heavy lift,” Leo told Kelley. It could be “a bloodbath” at first, he warned. But if handled properly, she could be confirmed. Still, Leo did not believe Miers was likely to be the candidate, and when he later called other conservatives to ask what they thought of her, they dismissed the question as too implausible to contemplate.
Cheney was not the only one who disagreed with the selection. Alberto Gonzales told Bush that Miers would be viewed as suspiciously as he was in conservative circles. Kelley and Brett Kavanaugh, the staff secretary, urged that Alito be chosen instead. Ed Gillespie, who was running the Roberts confirmation campaign and would presumably do the same for the next nominee, was urging the president to pick someone who would generate a clear-cut ideological fight. “A good, heated debate over striking ‘under God’ from the pledge, the merits of governments taking property from individual A to give to individual B, the validity of basing court decisions on foreign law and, of course, abortion on demand is not something we should shy away from,” Gillespie wrote in a memo.
But Bush was not looking for such a fight. On September 29, Roberts was confirmed 78 to 22 and sworn in as chief justice. Bush invited the new chief justice as well as Gillespie and the former senator Fred Thompson, who had served as Roberts’s Sherpa introducing him to the Senate, to the Oval Office, where he solicited advice.
Was it important, he asked, for the next nominee to be a woman?
Thompson said no, it was more important to pick the best-qualified candidate.
Gillespie disagreed. “Mr. President, I think if there’s a qualified woman, it would be good,” he said. Referring to his wife, he added, “Cathy’s a conservative woman, headed up W Stands for Women, as you know, and I know she’ll be disappointed if it’s not a woman.”
“That’s pretty telling,” Bush said. “My gut’s telling me I should find a woman.”
Bush headed to Camp David with Andy Card that weekend to think about what to do. He returned to the White House on Sunday, October 2, and summoned Miers to offer her the nomination. She accepted. The two of them joined Laura for a celebratory dinner.
For Bush, the decision fit a long pattern of turning to his own inner circle for appointments and, in a way, resembled the selection of Cheney, who likewise was in charge of finding a candidate, only to turn out to be that candidate. Bush trusted his own judgment of the people around him over the most sterling résumés of people he did not know. To stock his second-term cabinet, he had plucked Condoleezza Rice, Alberto Gonzales, and Margaret Spellings from his White House staff. Sometimes that worked; loyalty forged good working relationships. Other times, it proved to be a disaster.
In this case, Bush thought he was avoiding a fight by picking Miers. But he overestimated the reserve of goodwill he had on the right. Rove that same Sunday tried to reassure the base by calling James Dobson, head of Focus on the Family, a socially conservative advocacy group. Rove told him that Miers was a true-blue conservative who came from a well-known antiabortion church. Dobson agreed to endorse her. But when the White House called Leonard Leo just after 6:00 a.m. on October 3 to let him know that Bush would announce Miers’s nomination in less than two hours, he was literally speechless. “Leonard, are you there?” came the voice on the other end.
Bush appeared with Miers in the Oval Office at 8:00 a.m. and called her “exceptionally well suited to sit on the highest court of our nation.” At 8:12 a.m., two minutes before Bush even finished speaking, a well-connected conservative lawyer named Manuel Miranda sent out an e-mail message denouncing the choice to his expansive list of activists. “The reaction of many conservatives today will be that the president has made possibly the most unqualified choice since Abe Fortas, who had been the president’s lawyer,” Miranda wrote, referring to one of Lyndon Johnson’s choices for the Supreme Court. Within hours, other conservatives expressed disappointment, including William Kristol, David Frum, Charles Krauthammer, George Will, Robert Bork, and Rush Limbaugh. While conservatives had been uncomfortable with some of Bush’s decisions before, like No Child Left Behind, Medicare, and Social Security, this was the first time they revolted in such an overt, unrestrained way.
Cheney jumped in to defend the president’s choice, calling Limbaugh to vouch for Miers despite his own doubts. “I’m confident that she has a conservative judicial philosophy that you’d be comfortable with, Rush,” Cheney said. “I’ve worked closely with Harriet for five years.” He added, “She believes very deeply in the importance of interpreting the Constitution and the laws as written. She won’t legislate from the federal bench, and the president has great confidence in her judicial philosophy, has known her for many years, and I share that confidence based on my own personal experience.”
Bush personally responded to the criticism the next day during a Rose Garden news conference, calling Miers “the best person I could find.” But when he sent emissaries to meet with conservative groups, they were pummeled. At a luncheon of a hundred activists hosted by Grover Norquist, the antitax leader, on October 5, Ed Gillespie was shocked by the fiery reactions.
“She’s the president’s nominee,” charged David Keene, head of the American Conservative Union. “She’s not ours.”
Gillespie was offended by what he saw as the notion that Miers was some glorified coffee fetcher for the president. “There is a whiff of sexism and elitism in some of the criticism of Harriet,” he told the group.
The room erupted. “Are you saying people in this room are sexist and elitist?” asked Richard Lessner, an editorial writer turned consultant.
Gillespie quickly retreated. “No, I’m not,” he said. He only meant some of the criticism of her education, intellect, and even makeup seemed out of place.
The dynamic was repeated at another luncheon with conservatives on the same day hosted by Paul Weyrich, one of the architects of the modern conservative movement. “I’ve had five ‘trust-mes’ in my long history here,” Weyrich lectured Bush envoys, referring to past Republican court nominees who turned out more liberal than advertised. “I’m sorry, but the president saying he knows her heart is insufficient.”
Ken Mehlman, the president’s reelection campaign manager who was now chairman of the Republican National Committee, responded that this was not the same. “What’s different about this trust-me moment as opposed to the other ones is this president’s knowledge of this nominee,” he said.
BUSH HAD HAD IT with the conservatives who were beating up Harriet Miers. The more they
attacked her, the more he dug in. “I do not care about them at all,” he railed to an aide one day. “I don’t care what they say. This is my choice. I know who she is. I know what kind of justice she will be. I trust her.”
But the situation for Miers was growing worse, not because of the loud activists, but because of the soft-spoken nominee herself. Like John Roberts, Miers would prepare by going through “murder boards,” practice sessions where colleagues playing senators would throw questions at her. To get ready, she invited several lawyers to her second-floor office in the West Wing, including William Burck from the White House and Rachel Brand from the Justice Department. They sat down in the paneled office and tried some practice questions, although they were continually interrupted by BlackBerry messages and phone calls as Miers also tended to her White House duties.
Burck quizzed her on criminal law, laying out hypothetical situations. “So, in this particular circumstance,” he said at one point, “when you search a car, do you think the law is correct that all you need is reasonable suspicion versus probable cause?”
Miers looked hesitant and confused. “I don’t know what either of those two mean,” she admitted.
The lawyers were shocked. A corporate lawyer overseeing contracts and financial dealings might not need to know the definition of probable cause, but when it came to the highest court in the land, that was as basic as it got. If she could not handle the most fundamental terminology, how would she survive under the klieg lights of a Senate hearing? They went through more questions and discovered how little she knew. The Fourth Amendment on search and seizure, the Fifth Amendment on self-incrimination, “she literally knew nothing about it at all, nothing,” one official recalled.
The formal murder boards were even worse. The prep sessions were so embarrassing that administration officials kept out conservative lawyers who often participated, including Boyden Gray and Leonard Leo of the Four Horsemen. “They wouldn’t let us,” Gray recalled, “and both of us looked at each other and said that means she isn’t going to make it if they can’t allow us to see what’s going on.”
It was not much better on Capitol Hill. When Miers got uncomfortable, she tended to shut down and as she paid courtesy calls on senators, she returned to the White House each day with less support than when she had left, even among the Republicans. “Harriet, you’re going to have to say something next time,” Senator Jeff Sessions, a conservative from Alabama, told her after one meeting. When Miers asked Senator Tom Coburn of Oklahoma how she did during their session, he responded, “Harriet, you flunked.” More critically, Senator Arlen Specter, chairman of the Judiciary Committee, was offended when she contradicted his account of what she had said about privacy rights during their meeting. He was even upset at her written answers to the traditional Senate questionnaire and sent it back to her to do over again, like a teacher forcing a student to redo her homework.
In the end, it was not the attacks by conservatives that would do in Miers. It was her own performance at the murder boards.
“Dan, we can’t do this,” one of the lawyers told Dan Bartlett.
“We know,” he replied. “Give us time.”
Andy Card offered a grim report to Bush in the Oval Office on October 25 and suggested Miers withdraw. She would be savaged on national television.
“We cannot put her through that,” Bartlett told Bush. “We will forever damage her.”
Bush understood and had already begun thinking out loud about who to nominate next. He was mad at his aides, aggravated that they had let this happen. But he realized he was the one who had put his friend in this situation and it was time to find a way out.
Card went to Miers that night and told her it was not going well. He left assuming she understood his meaning, but she did not. The next morning, William Kelley visited and was blunter. “You have to withdraw,” her deputy told her. She resisted. But that morning’s Washington Post had a story reporting that during a speech in 1993 she had suggested that “self-determination” should guide decisions about abortion and warned against “legislating religion or morality,” comments that undercut whatever conservative patience remained. Concerned Women for America, a conservative antiabortion group, decided to oppose Miers. Bill Frist, at the White House for a budget meeting, privately told Bush that Miers was in deep trouble.
That much Bush knew. As the sun set, Miers accepted it was over, realizing that Bush, while never telling her himself, had been sending signals through Card and Kelley. Bush was working in his office in the Treaty Room in the residence at 8:30 p.m. when she called to tell him she would drop her nomination. He did not try to talk her out of it. Unaware of the development, White House aides finished revising Miers’s rejected Senate questionnaire and delivered it to Capitol Hill at 11:40 p.m., three hours after she gave up. Miers scratched out a formal withdrawal letter and headed into the Oval Office to deliver it the next morning, at 8:30 on October 27, just twenty-four days after her nomination. The White House announced it at 9:00 a.m. Miers went back to the White House counsel’s office to begin the search for a new nominee.
The experience would pain Bush for years to come. “If I had it to do over again,” he later wrote, “I would not have thrown Harriet to the wolves of Washington.”
Cheney could only shake his head at the unforced error. “I tried to tell him,” he told an aide.
24
“You could have heard a pin drop”
It was hard to miss the fact that Karl Rove was absent. It was October 28, the morning after Harriet Miers withdrew, and the senior White House staff had gathered for their regular meeting. Everyone knew the moment of truth in the CIA leak case was near and that the president’s most prominent adviser could be indicted at any moment.
It had been a surreal environment in the West Wing for months. Aides were fixated on the investigation and what it could mean, yet they could not discuss it with each other, because the lawyers had issued strict instructions not to talk about it. Rove and Scott McClellan were estranged. Legal bills piled up for White House officials forced to testify. Even those not targeted by prosecutors, like Dan Bartlett, had trouble sleeping at times. Moreover, some thought the case had sown distrust between President Bush and Vice President Cheney, that Bush was not happy that Cheney had gotten them into this mess by overreacting to the criticism from Joseph Wilson.
As it turned out that morning, Rove was not the one the staff needed to be worried about. While the aides went over the day’s business, someone came in and slipped a note to Scooter Libby. He read it wordlessly, then abruptly got up. He grabbed a pair of crutches he had been using since a recent accident and hobbled out of the room. “You could have heard a pin drop,” Scott McClellan recalled. By the time the meeting ended, Libby had turned in his badge and left the White House, never to return.
Bush, who normally disdained television, sat glued to the set in the private dining room off the Oval Office watching as the prosecutor Patrick Fitzgerald announced Libby’s indictment on five counts of perjury, obstruction of justice and making false statements. Fitzgerald had not charged Libby with the leak itself, alleging only that he had not told the truth about how he learned about Wilson’s wife and whom he told about it. Rove, who had shown up late for work that day, had escaped indictment, at least for now.
For the president and the vice president, the week was already one of the worst of their time in office. The flameout of Miers’s candidacy was a shattering blow to Bush and a reminder that Cheney’s advice had been disregarded. Now the prospect of a trial of the vice president’s chief of staff was devastating. It would go to the heart of the most dangerous political question confronting the administration, namely its veracity in selling the country on war. The Libby case had fueled the suspicion that the White House had deliberately deceived the country; “Bush Lied, People Died” was the favorite bumper sticker of the Left.
While Bush was shaken, Cheney was pained in a far deeper and surprisingly personal way. A poli
tician who had not been reluctant to fire subordinates in the past felt profoundly upset about this adviser, who had become a virtual alter ego. Cheney believed the case was aimed at him and that Libby took his bullet. Some on his staff saw Fitzgerald’s zeal as an extension of the fight over the warrantless surveillance program, recalling that he was appointed by his friend James Comey. They suspected the case was prosecuted “essentially to disable the vice president,” as one aide put it.
Libby had left a letter of resignation with Andy Card and departed without talking with Bush. Dean McGrath, Libby’s deputy, who drove him off the grounds, took him straight to his lawyer’s office. In a sign of his sudden turn of fortune, Miers sent out a memo virtually declaring Libby persona non grata, ordering that “all White House staffers should not have any contact with Scooter Libby about any aspect of the investigation.” The staff was demoralized; most, though not all, liked Libby. “The lowest point that I can recall was the lead-up to the indictment of Scooter,” Peter Wehner said.
Cheney wrote out by hand what he wanted to say in his statement, and Bush aides were struck by how personally he took the case when they compared his draft with the one they had come up with for Bush. “The only hurt I ever saw in him was with Scooter Libby,” Alan Simpson said. And just like that, he had lost his most effective lieutenant, his “Cheney’s Cheney,” as colleagues called him, the alter ego the vice president counted on to keep tabs on what was happening around the West Wing and to make sure his own views were heard.
With Miers shot down and Libby under indictment, Bush retreated to Camp David to talk about what came next. The first task was to find another Supreme Court justice, and at this point Bush wanted no more fuss. To everyone’s amazement, Miers resumed her role as counsel, throwing herself into the search for someone to take her place as if nothing had happened. “Her stock went out of the roof internally the week after that, just the way she conducted herself,” Bartlett remembered.