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Making Sense of the Miers Nomination

By Robert Parry
October 7, 2005

By picking his personal lawyer Harriet Miers to fill a key swing seat on the U.S. Supreme Court, George W. Bush angered his right-wing supporters, who wanted someone with clearer conservative credentials, and opened himself to new charges of cronyism – a double whammy of bad PR. So why did he do it?

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 conservative issues.

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 decade?

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 John Poindexter.

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 higher-ups.

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.

Thin Credentials

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 confirm Miers.

“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. Supreme Court.


Robert Parry broke many of the Iran-Contra stories in the 1980s for the Associated Press and Newsweek. His latest book, Secrecy & Privilege: Rise of the Bush Dynasty from Watergate to Iraq, can be ordered at secrecyandprivilege.com. It's also available at Amazon.com, as is his 1999 book, Lost History: Contras, Cocaine, the Press & 'Project Truth.'

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