The most common theory is that Bush was looking for
a stealth candidate who wouldn’t provoke strong Democratic opposition
but would get solid Republican backing – after some wink-wink assurances
that she would vote the right way on abortion and other core
That indeed may be the answer. Bush may have just
miscalculated how disappointed his conservative base would be and how
offended other Americans would be at his straight-faced assertion that
his White House counsel was “the best person I could find.”
But there is another theory that would fit the
facts. It may be that Bush is less concerned about constitutional issues
than he is about criminal and political disputes that might reach the
court if the troubles surging around his administration get worse.
What if, for instance, a senior Bush aide is facing
prosecution in connection with an untested law prohibiting unmasking
covert CIA officers? It might be handy for Bush to have a trusted friend
on the court of last resort to rule on some technical legal questions
that could torpedo the whole case.
Or what if it turns out that Bush himself
participated in the criminal act? Wouldn’t it be advantageous if the
lawyer who helped him out of previous legal scrapes was sitting among
the judges who would make a ruling on this one? (And there really is no
reason to think that a Bush appointee would step aside because of some
fretting over conflicts of interest.)
The Nixon Tale
Bush also might be concerned about the court
ordering him to hand over a document or reveal some sensitive secret
that could be politically embarrassing. Who better to see the issue
through Bush’s eyes than someone who has worked by his side for the past
Republicans haven’t forgotten that when Richard
Nixon was trying to keep his White House tape recordings out of the
hands of Watergate prosecutors in 1974, the U.S. Supreme Court ruled
against him unanimously. Conservative justices joined with liberals in
declaring that no man is above the law.
After Nixon surrendered his tapes, which revealed
him plotting the Watergate cover-up, his presidency was finished.
In the late 1980s and early 1990s, the Reagan-Bush
administrations learned the value of having dedicated conservative
judges on the U.S. Court of Appeals in Washington when Republicans were
facing another crisis over the Iran-Contra Affair.
After Iran-Contra special prosecutor Lawrence Walsh
won a hard-fought conviction of White House aide Oliver North, two
right-wing judges – Laurence Silberman and David Sentelle – threw the
case out on a technicality. Sentelle then joined in a second ruling
wiping out the conviction of Ronald Reagan’s national security adviser
The reversals helped protect Reagan and George H.W.
Bush by showing that Walsh would be stopped if he tried to use felony
convictions of lower-level officials to get them to testify against the
To further box Walsh in, U.S. Supreme Court Chief
Justice William Rehnquist installed Sentelle as the chief judge
overseeing special prosecutors, an appointment that discouraged Walsh
from continuing his investigation of possible obstruction of justice by
the first President George Bush.
(A side benefit for conservatives was that Sentelle,
a protégé of right-wing Sen. Jesse Helms, was still in place to pick a
series of conservative prosecutors to go after President Bill Clinton
and officials in his administration.) [For details, see Robert Parry’s
Secrecy & Privilege: Rise of the Bush Dynasty from Watergate to Iraq.]
Walsh, a lifelong Republican who had supported
Ronald Reagan, concluded that the Reagan-Bush loyalists on the U.S.
Court of Appeals represented “a powerful band of Republican appointees
[who] waited like the strategic reserves of an embattled army.” [See
Walsh’s memoir, Firewall.]
Bush v. Gore
Election 2000 also taught George W. Bush how
valuable friends on the federal courts can be. In December 2000, as he
was trying to stop a state-court-ordered recount in Florida, he was
rebuffed by a federal appeals court in Atlanta, where the conservative
judges took seriously their philosophical commitment to states’ rights.
So, Bush sent his lawyers to the U.S. Supreme Court
where five Republican justices – Rehnquist, Sandra Day O’Connor, Anthony
Kennedy, Antonin Scalia and Clarence Thomas – set aside those principles
in favor of a political desire to stop the vote counting and put Bush
into the White House. [For details, see Consortiumnews.com’s “Rehnquist’s
Legacy: A Partisan Court.”]
Since taking office in 2001, George W. Bush has
reinforced the Republican “strategic reserves” on the federal appeals
courts. But until this year, he wasn’t able to shore up his political
advantage on the U.S. Supreme Court.
After Rehnquist died this summer, Bush picked
trusted conservative John Roberts to succeed the chief justice. Now,
Bush has chosen White House insider Miers to replace O’Connor, a move
that should strengthen Bush’s last line of legal defense, given
O’Connor’s lack of consistency on conservative causes.
The Miers appointment, however, hasn’t gone as Bush
expected. She has drawn almost as much negative comment from the Right
as from the Left.
Former White House speechwriter David Frum took a
bemused pride in being out front in mentioning Miers’s name as
O’Connor’s possible successor.
“I believe I was the first to
float the name of Harriet Miers, White House counsel, as a possible
Supreme Court,” Frum wrote in his blog,
David Frum’s Diary, Sept. 29, 2005. “I have to confess that at the
time, I was mostly joking.
“Harriet Miers is a capable lawyer, a hard worker,
and a kind and generous person. She would be an [sic] reasonable choice
for a generalist attorney, which is indeed how George W. Bush first met
her. She would make an excellent trial judge: She is a careful and
fair-minded listener. But US Supreme Court?
“In the White House that hero worshipped the
president, Miers was distinguished by the intensity of her zeal: She
once told me that the president was the most brilliant man she had ever
met. She served Bush well, but she is not the person to lead the court
in new directions – or to stand up under the criticism that a
conservative justice must expect.”
Some Washington wags joked about who was less in touch with reality,
Miers who considered Bush “the most brilliant man she had ever met” or
Bush who claimed that Miers was “the best person I could find?”
Clearly Bush, the 59-year-old Texas “bad boy” who needed smart
lawyers to keep his past misdeeds secret, and Miers, the 60-year-old
unmarried workaholic lawyer specializing in discreet client care, were
part of a mutual-admiration society.
But some prominent conservatives, such as columnist George F. Will,
found the Bush-Miers coziness offensive and her qualifications suspect
to anyone well-versed in constitutional law.
“If 100 people such people had been asked to list 100 individuals who
have given evidence of the reflectiveness and excellence requisite in a
justice, Miers’s name probably would not have appeared in any of the
10,000 places on those lists,” Will wrote in a column entitled “Can This
Nomination Be Justified?”
Based on what is presently known, Will called on the Senate not to
“Otherwise, the sound principle of substantial deference to a
president’s choice of judicial nominees will dissolve into a
rationalization for senatorial abdication of the duty to hold presidents
to some standards of seriousness that will prevent them from
reducing the Supreme Court to a private plaything useful for fulfilling
whims on behalf of friends,” Will wrote. [Washington Post, Oct. 5, 2005]
For some conservatives, the Miers nomination represented the
cronyism-bridge-too-far, but other Bush watchers saw the Miers pick as
part of the president’s psychological need for approval from loyal and
adoring women, such as Secretary of State Condoleezza Rice and Under
Secretary of State Karen Hughes.
“W. loves being surrounded by tough women who steadfastly devote
their entire lives to doting on him, like the vestal virgins guarding
the sacred fire, serving as custodians for his values and watchdogs for
his reputation,” wrote New York Times columnist Maureen Dowd.
“In 1998, during his re-election race for governor, Harry [Miers’s
nickname] handled the first questions about whether Mr. Bush had
received favorable treatment to get into the Texas Air National Guard to
avoid the draft,” Dowd wrote.
“But who cares whether she has the judicial experience, and that no
one knows what she believes or how she would rule from a bench she’s
never been behind, as long as the reason her views are so mysterious is
that she’s subordinated them to W.’s, making him feel like the most
thoughtful, far-sighted he-man in the world?” [NYT, Oct. 5, 2005]
The Miers nomination appears heading toward a
harder-than-expected fight. But if Bush and his political tough guys –
the likes of
Karl Rove and Tom DeLay – do end up facing serious criminal
troubles, they might thank their lucky stars if one of Bush’s “vestal
virgins” is protecting their legal flanks from a seat on the U.S.