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Jewish World Review Oct. 24, 2005 / 21 Tishrei 5766

John H. Fund

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What Went Wrong: Lessons the White House should learn from the Miers debacle | President Bush has returned from a weekend in Camp David, where much of the discussion centered on the beleaguered nomination of Harriet Miers. While the president is determined to press forward, the prognosis he received was grim. Her visits with senators have gone poorly. Her written answers to questions from the Senate were sent back as if they were incomplete homework. The nominee herself has stumbled frequently in the tutorials in which government lawyers are grilling her in preparation for her Nov. 7 hearings.

The president trusts his instincts, and they are usually right. But when they fail him, the result can be calamitous. Take last December's nomination of Bernard Kerik to head the Department of Homeland Security. After several scandals involving his time as head of New York City's police quickly surfaced, it was then learned he had employed an illegal alien as a nanny and failed to submit required Social Security payments. After only a week, Mr. Bush quietly allowed Mr. Kerik to withdraw his name.

Andrew Card, the White House chief of staff, even suggested to ABC News that Mr. Bush had merely "intended" to nominate Mr. Kerik and insisted that "many of the questions that have been raised in the media were well understood by the White House when they considered Bernie Kerik." He wouldn't elaborate on which ones, leading many reporters to conclude the White House was more intent on spinning the story than learning lessons from the botched pick. The president reinforced that impression during a post-Kerik news conference, when he insisted, "I've got great confidence in our vetting process. And so the lessons learned is continue to vet and ask good questions and get these candidates, the prospective nominees, to understand what we expect a candidate will face during a background check, FBI background check as well as congressional hearings."

The botched handling of the Kerik nomination was a precursor of much that has gone wrong with the Miers nomination. This time, the normal vetting process broke down, with Mr. Card ordering William Kelley, Ms. Miers's own deputy, to conduct the background checks  —  a clear conflict of interest. Even Newt Gingrich, a supporter of Ms. Miers's nomination, says that "the president believes in her so deeply, he is so convinced she's the right person, that I don't think it ever occurred to him to go through the kind of normal opposition research and normal vetting."

The big difference between the Kerik nomination and the Miers nomination is that Mr. Bush has a long history with Ms. Miers and he is still bravely fighting for her after three weeks of brutal criticism. But Ms. Miers has not been well-served by Bush supporters who have engaged in increasingly strained arguments to overcome the skepticism about her. Three approaches in particular have alienated many people who are vital to Ms. Miers' confirmation:

Intimidation and arm-twisting. Many longtime supporters of President Bush have been startled to get phone calls from allies of the president strongly implying that a failure to support Ms. Miers will be unhealthy to their political future. "The message in Texas is, if you aren't for this nominee, you are against the president," one conservative leader in that state told me. The pressure has led to more resentment than results.

Similar pressure has been applied in New Hampshire, site of the nation's first presidential primary in 2008. Newsweek has reported that "when George W. Bush's political team wanted to send ambitious Republican senators a firm message about Harriet Miers (crude summary: 'Lay off her if you ever want our help')," they chose loyal Bush ally and former state attorney general Tom Rath to deliver it. Plans were even launched to confront Virginia's Sen. George Allen, a likely 2008 candidate for president, and demand he sign a pro-Miers pledge. Luckily, the local Bush forces were warned off such a move at the last minute.

Mr. Rath didn't return my calls, and local sources say he is laying low now that reporters have uncovered his key role in pushing the nomination of David Souter in 1990. "It was Rath and [then-Sen. Warren] Rudman who convinced [then White House chief of staff] John Sununu to back Souter," recalls Gordon Humphrey, a former U.S. senator from the Granite State who at the time supported Judge Souter as a member of the Judiciary Committee. The profound disappointment conservatives experienced when Justice Souter, another stealth nominee, veered left is a major reason for the resistance to Harriet Miers.

Another reason for conservative suspicion is that it was Mr. Card, a former moderate Massachusetts state legislator, who pushed the Miers choice. "This is something that Andy and the president cooked up," a White House adviser told Time magazine. "Andy knew it would appeal to the president because he loves appointing his own people and being supersecret and stealthy about it." Conservatives still recall that in the White House of the first President Bush, Mr. Card was deputy chief of staff to Mr. Sununu, the prime backer of Judge Souter. Mr. Card told me on Friday that "it would be a complete exaggeration to say I played a role in the Souter selection. I merely supported his nomination as I did all presidential appointments."

Ed Rollins, the GOP consultant who at the time headed the House Republican Campaign Committee and who was Mr. Card's boss in the Reagan White House, remembers it differently. "Of course Andy played a role," he told me. "He was Sununu's top aide." Two other aides who served with Mr. Card in the White House told me he was an enthusiastic backer of the Souter selection. "Now that he's brought us Miers we worry that 15 years later Andy is playing the role of a Serial Souterizer," one said.

Rewriting the history of Ms. Miers's selection. After political pushback by conservatives became clear, the White House apparently engaged in spurious spin to explain the logic of the selection. Dr. James Dobson, the head of Focus on the Family, says he was told by White House aide Karl Rove that other female candidates had withdrawn from consideration because "the process had become so vicious and so vitriolic and so bitter that they didn't want to subject themselves or their families to it." White House aides have told others the same story, but will mention names only privately. Many now feel they were misled.

After making several calls to White House and Senate staffers as well as conservative activists who unofficially advised the White House, I have grave doubts about the White House storyline, as do others. One potential nominee did want the White House to know she had some family problems that could bear on the selection process but she did not withdraw her name. Three whose names the White House has privately mentioned as having dropped out say they are angry at any suggestion they did.

What is clear is that the same White House that says it won't listen to senators who tell them the Miers nomination should be withdrawn was highly solicitous of Senate objections to other qualified nominees. One federal judge was nixed by a powerful senator over a judicial opinion that would have been attacked by feminists. Priscilla Owen and Janice Rogers Brown, both of whom won tough confirmation battles for seats on appellate courts only this spring, were nixed by other GOP Senators as too tough a battle for the high court. Alice Batchelder of the Sixth Circuit was deep-sixed by an old Ohio political rival, Republican National Committee co-chairman Jo Ann Davidson. The White House and some senators deemed Edith Jones of the Fifth Circuit too difficult to confirm. Given Mr. Bush's idée fixe that the nominee had to be a woman, it's possible the White House allowed itself to be pushed into a corner in which Ms. Miers was literally the only female left.

A totally failed White House effort to explain and build support for the nomination. Assuming Ms. Miers was the only potential nominee the White House inner circle could agree on, it is remarkable how poor a job they have done in providing even the most basic information about her. Ms. Miers herself had to make an emergency trip to Dallas to recover basic documents that would normally have been submitted during a vetting process.

Ms. Miers has never published anything of note other than vanilla op-ed pieces, and her memos to President Bush are protected by executive privilege. In trying to find clues as to her judicial philosophy, I have called all over Texas and Washington in search of people she might have talked with about that topic. No luck. In fact, it became clear Ms. Miers is a complete mystery. "We spent about 1,200 hours together and had in excess of 6,000 agenda items, and I never knew where Harriet was going to be on any of those items until she cast her vote," Jim Buerger, a former Miers colleague on the Dallas City Council, told the Washington Post. "I wouldn't consider her a liberal, a moderate or a conservative, and I can't honestly think of any cause she championed."

I then tried the White House and the Republican National Committee and gave them a simple request. "Can you give me the name of anyone who has ever had a serious conversation about politics or judicial philosophy with Ms. Miers? Leave aside her good friend Nathan Hecht or someone on the White House payroll. I don't even have to know what the conversation consisted of, just be satisfied that they had one." I never received any names.

I called Justice Hecht, her longtime friend of 30 years, who now sits on the Texas Supreme Court. The gracious Justice Hecht, who has testified to Ms. Miers's character, told me she is a strict constructionist in judicial philosophy and is "pro-life" in her personal views. When I asked him if there was anyone else he knew who had ever spoken with Ms. Miers about politics or judicial philosophy, he hesitated. After some effort he came up with one name. After more prodding he gave me another name, someone he said would be of "limited help." I thanked him and called up his two suggested sources. One didn't return my call. The other, former Texas Supreme Court justice Tom Phillips, recalled one conversation about how Ms. Miers could "get out the vote" in her race for City Council. He was otherwise stumped.

So my hunt went on. In desperation, I took to going on radio talk shows in Texas and tongue-in-cheek offered to practice "checkbook journalism" for the first time in my career. I said I would write a small check to the favorite charity of anyone who contacted me and could plausibly say that he has had a serious discussion about politics or judicial philosophy with Ms. Miers. So far it hasn't cost me a dime. For my trouble, I have been incorrectly attacked by allies of Ms. Miers, including some in the White House, for supposedly waving a checkbook seeking negative information about her. For the record, I made my offer in a jocular fashion, but to make a serious point. With the exception of President Bush, no one appears to know the nominee's judicial philosophy.

I believe it is almost inevitable that Ms. Miers will withdraw or be defeated. Should that happen, it is important President Bush understand how it really happened. While he acted out of sincerity, the nomination was quickly perceived by many as merely a means to a desired end: getting another vote for his views on the court. While some conservatives backed her because they honestly believed she would rule independently with an understanding of the limited role of judges envisioned by the Founders, that message was drowned out by accusations of cronyism and mediocrity.

The president also was let down by seven senators in his own party who in May agreed to scuttle plans to end judicial filibusters blocking nominees from ever getting a vote. It wouldn't have been unreasonable for him to think the Senate wasn't in a position to confirm a nominee with a long paper trail.

But he may soon have a chance for a fresh start and no choice but to have a fight over substance. When Douglas Ginsburg asked to have his nomination to the Supreme Court pulled in 1987 after allegations he had used marijuana, Ronald Reagan won unanimous confirmation in a Democratic Senate for Anthony Kennedy, then a judge with a decade-long conservative track record on a federal appellate court. Similarly, Mr. Bush recovered quickly from losing Linda Chavez as his nominee for Labor Secretary and Mr. Kerik as Secretary of Homeland Security. The damage to his relations with his conservative base would blow over quickly if Mr. Bush were to quickly name a well-qualified nominee who was not a sphinx when it came to judicial philosophy. Perhaps this time he might even expand the talent pool to include  —  gasp  —  men.

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JWR contributor John H. Fund is author, most recently, of "Stealing Elections: How Voter Fraud Threatens Our Democracy". (Click HERE to purchase. Sales help fund JWR.)

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©2001, John H. Fund