Miers’s existence outside the firm amounted to an extension of her life in it. She belonged to the Democratic Party when virtually all of the state’s power brokers did; she contributed $1,000 to Al Gore’s campaign for president in 1988. She worked her way up the hierarchy in the state bar association, a traditional route for advancement in the profession, until she became the first woman president of the Texas bar in 1992. The previous year, she had quit after serving a single two-year term as a member of the Dallas City Council. She felt ill suited for running for office, because she was far more interested in corporate work than in politics. She didn’t litigate constitutional issues or, it would seem, based on the available evidence, give them much thought either.
Like many other single-minded careerists who had focused on their professional life to the exclusion of most everything else, Miers appears to have undergone a spiritual crisis of sorts. For many years, she had an on-and-off romantic relationship with Nathan Hecht, a combative conservative who was a justice on the Texas Supreme Court. Miers was raised a Catholic, but Hecht invited her to join him at Valley View Christian, one of the biggest evangelical churches in Dallas. She did—and it changed her life. As her minister recalled, “Her purpose for life changed. She has a servant’s mentality, and I think that is a tribute to her personal faith. Jesus told his disciples that he didn’t come to be served but to serve. Harriet epitomizes that.”
Not long after Miers’s religious conversion, George W. Bush, who was then running for his first term as governor, ran into some trouble involving a fishing club in east Texas. The caretaker said he had been unjustly fired, and he was suing the members, including Bush. The future governor hired Miers as his lawyer, and she deftly (and quietly) won the case. The up-and-coming politician kept her on as his personal attorney, and Miers embraced George W. Bush with the same born-again passion that she brought to her new church.
On September 21, 2005, Bush held a meeting with a bipartisan group of senators about his plans for filling O’Connor’s seat. To some extent, such “consultations” with senators were a sham; the Bush White House zealously guarded its prerogatives, and no presidential power was more important than the right to select Supreme Court justices. At the meeting, Arlen Specter set his colleagues’ eyes rolling with a preposterous suggestion—that Bush wait until 2006 to nominate anyone, so as to see how Roberts was faring as chief justice, and then to appoint someone who would preserve the Court’s balance. But Bush and his supporters wanted change on the Court, not balance, and they ignored Specter’s idea. Harry Reid then again mentioned Miers as a possible candidate.
The idea still made sense to the president—the appointment of, in effect, his own ideological clone who would attract no opposition from the Democrats in the Senate. That night Bush summoned Miers to the Oval Office and formally asked her whether she wanted to be considered. This time, she said yes.
Miers’s presence as an official candidate for the seat complicated the search process, which was now accelerating as Roberts’s confirmation grew nearer. (The Judiciary Committee approved Roberts on September 22.) Miers was not asked to bring in any other candidates for interviews with Bush. Only a handful of staffers, including Card, Rove, and Kelley, knew that Miers was a candidate, and they all honored Bush’s wish for a selection process without leaks. On the day that the committee approved Roberts, Kelley called Leonard Leo of the Federalist Society and told him that Miers had become a serious candidate. They met the next day for breakfast at the Ritz-Carlton in Tysons Corner, and Leo said that Miers’s lack of a record would present a problem for conservative groups. “This would be a heavy lift,” he said. But Leo’s message never penetrated the upper levels of the White House. (During the following week, Leo tried to sound out his colleagues in the conservative movement about a Miers nomination, but no one would take the idea seriously. They didn’t approve or disapprove so much as dismiss her appointment as a possibility.) Every White House is an echo chamber of sorts, and leaks often serve the useful purpose of flushing out problems. But since there were no leaks about Miers, no one in the White House knew what the reaction to her nomination would be.
All of the top officials who were considering Miers’s appointment—Bush, Cheney, Card, Rove, and Miers herself—had relatively little idea what Supreme Court justices actually do all day. (“All we do is read and write,” Breyer liked to say. “I used to tell my son if you’re really good at doing homework, you get to do homework for the rest of your life.”) Everyone in Bush’s inner circle came out of the corporate world, where they believed that good judgment and instincts mattered more than reflective analysis. The same was true for corporate lawyers. Bush would never have dreamed of asking prospective members of his cabinet for writing samples, and he didn’t require them of Miers either. For the president, it was not a problem that Miers had no writing to offer.
Talking only to a handful of insiders—and again to Miers on September 28 and 29—Bush grew more and more convinced that she was a good choice. Their last conversations had to do less with whether she belonged on the Supreme Court and more with whom the White House might recruit as knowledgeable surrogates to speak on her behalf. At this point, the search remained leak-free. Remarkably, the first time any news accounts mentioned Miers was just before Roberts was confirmed on September 29, and even then her name appeared only at the end of a long list of possibilities. But when Miers agreed to be considered on September 21, the search process essentially stopped.
Only over the weekend of October 1–2 did the White House begin notifying outsiders that Miers might be the choice. Like the president, Karl Rove played a less active role in the selection of the second justice. Heavily involved in trying to handle the fallout from Katrina, he was facing an additional problem. During September, the prosecutor Patrick Fitzgerald’s criminal investigation into the leak of CIA official Valerie Wilson’s name had reached a critical stage; Rove faced the real possibility of being indicted.
So it was not until Sunday, October 2, that Rove fully engaged with the nomination process. His first call—which revealed whose opinion really mattered—was to James Dobson, the founder and leader of Focus on the Family, to tout Miers’s credentials. Rove assured Dobson that Miers was an evangelical Christian and a strict constructionist. Rove said further that her friend Nathan Hecht of the Texas Supreme Court could vouch for Miers’s soundness on social issues. In fact, Hecht himself would be speaking on a conference call for evangelical leaders the following day. Rove’s stroking of Dobson made political sense, because Bush’s political adviser knew, even if the mainstream media did not, that it was evangelical leaders like Dobson, not Senate Democrats, who had the power to make or break Bush’s nominees.
That Sunday afternoon, Bush formally offered the appointment to Miers. She accepted, and the White House press office spent the evening working in secrecy to produce the biographical material and talking points that would accompany the announcement.
On Monday, October 3, at Bush’s now customary 8:01 a.m., the president and Miers stood side by side in the Oval Office. “This morning, I’m proud to announce that I am nominating Harriet Ellan Miers to serve as associate justice of the Supreme Court. For the past five years, Harriet Miers has served in critical roles in our nation’s government, including one of the most important legal positions in the country, White House counsel. She has devoted her life to the rule of law and the cause of justice,” he said. “I’ve known Harriet for more than a decade. I know her heart, I know her character. I know that Harriet’s mother is proud of her today, and I know her father would be proud of her, too. I’m confident that Harriet Miers will add to the wisdom and character of our judiciary when she is confirmed as the 110th justice of the Supreme Court.”
Miers, unlike Roberts, chose to read her brief remarks: “From my early days as a clerk in the federal district court, and throughout almost three decades of legal practice, bar service, and community service, I have always had a great respect and admirati
on for the genius that inspired our Constitution and our system of government. My respect and admiration have only grown over these past five years that you have allowed me to serve the American people as a representative of the executive branch.” Then Miers tried to define her judicial philosophy, which she clearly had not developed in her legal career. “The wisdom of those who drafted our Constitution and conceived our nation as functioning with three strong and independent branches have proven truly remarkable,” she began, ungrammatically. “It is the responsibility of every generation to be true to the founders’ vision of the proper role of the courts in our society.” By citing the “founders’ vision,” Miers was positioning herself as an originalist, like Scalia. “If confirmed,” she went on, “I recognize that I will have a tremendous responsibility to keep our judicial system strong, and to help ensure that the courts meet their obligations to strictly apply the laws and the Constitution.” Likewise, the use of the word strictly was meant to identify her with strict constructionists, like Rehnquist.
But Miers’s tentative advocacy for herself was already late. By the time her announcement ceremony concluded at 8:14 a.m., the assault on her had already begun.
At 8:12, Manny Miranda sent out an e-mail to his colleagues in the conservative movement. “The president has made possibly the most unqualified choice since Abe Fortas, who had been the president’s lawyer,” Miranda wrote. “The nomination of a nominee with no judicial record is a significant failure for the advisors that the White House gathered around it.” At 8:51, David Frum, a former speech-writer in the Bush White House, offered a similar dismissal of Miers, based on firsthand knowledge. “Harriet Miers is a taut, nervous, anxious personality,” Frum wrote on his blog for the National Review. “I am not saying that Harriet Miers is not a legal conservative. I am not saying that she is not steely. I am saying only that there is no good reason to believe either of these things.”
Later that day, as Rove had promised, Nathan Hecht, as well as another Texas judge, Ed Kinkeade of the federal district court, convened a conference call for conservative leaders, to make an affirmative case for Miers. The call was organized for members of the Arlington Group, an alliance of about sixty “pro-family” groups, and its members included such well-known figures as Gary Bauer of the American Values group, Richard Land of the Southern Baptist Convention, and James Dobson, the national chairman of the group. (The Arlington Group had been a leading advocate for placing constitutional amendments against gay marriage on state ballots in 2004, a strategy that was widely credited with increasing conservative turnout and aiding the Bush campaign.) Dobson presided over the call, saying Rove had suggested that Hecht and Kinkeade could vouch for Miers’s conservative bona fides. This, of course, led to the key question about her candidacy.
“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 t
he 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.
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