Behind the Miers Withdrawal

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WITHDRAWN: Miers on her way to the White House

A few days before Harriet Miers suddenly withdrew her nomination to be an Associate Justice of the Supreme Court, one of President Bush's leading allies on judicial nominations was moaning at a Washington party about the President's pick to replace Sandra Day O'Connor. "It's a disaster," he said. "I don't understand it."

The departure of Harriet Miers—the first Supreme Court nomination to be withdrawn under duress (John Roberts withdrew from consideration as Associate Justice so he could be nominated to replace William Rehnquist as Chief Justice) since Judge Douglas Ginsburg was dropped over marijuana use in 1987—is a huge embarrassment to a White House that prides itself on its political savvy and keeping its base happy. Conservatives who had long pushed for a judge whose views matched their own were furious when Bush thanked them by presenting a nominee whose positions were unknown to say the least and whose qualifications for the highest court in the land were paltry at best. Had Miers—a 60-year-old who was touted for her competence, if nothing else—turned in an even adequate performance in the days since her Oval Office announcement, she might have squeaked through a Senate where the President's party holds a five-seat majority. But she fumbled consistently. She seemed to confuse Chief Justices Earl Warren and Warren Burger in a meeting with Sen. Patrick Leahy of Vermont. She left Senate Judiciary Committee Chairman Arlen Specter of Pennsylvania with the impression that she supported the privacy rights in the 1965 Griswold decision. Then she corrected him. In an unprecedented move, she was basically told to redo her questionnaire for the Senate Judiciary Committee. Senators who met her emerged more and not less doubtful of her abilities.

The President, in a bit of chutzpah, tried to blame the Miers withdrawal today on the Senate. "It is clear that senators would not be satisfied until they gained access to internal documents concerning advice provided during her tenure at the White House—disclosures that would undermine a president's ability to receive candid counsel," Bush said. But no one was buying it. The problem wasn't the process but a perception that this was an instance of naked cronyism at work. No one believed this was about executive privilege any more than people thought that FEMA Director Michael Brown had been brought back to Washington from New Orleans for more important work.

Now that the 24-day nomination of Miers is over, Bush is likely to turn to an established conservative jurist with impeccable intellectual credentials. The leading Bush ally told TIME that Sam Alito, a federal appeals court judge from New Jersey and a favorite of the Federalist Society, the leading organization of conservative lawyers, is a likely pick. But all the other names that were touted back in September—California Supreme Court Justice Janice Rogers Brown and federal appeals court judges Michael Luttig, Michael McConnell, and Edith Jones will all get reviewed again. It's hard to see why Bush would anger the conservative base for a second time by offering Attorney General Alberto Gonzales.

The Miers withdrawal represents Bush's greatest rift with conservatives since his election as president. And the break couldn't have come at a worse time. The President needs conservatives as he goes into battle to defend his faltering Iraq policy, his eroding support on spending, and his plan to establish a guest worker program for immigrants, which is dividing Republicans like few other issues. But it's not just his policies that are in danger; his presidency is hampered by a CIA leak investigation and trials that could cripple him for his remaining 39 months in office. Now the President can repair the breach with conservatives. They are likely to quickly forgive him this indiscretion. And he will, at the very least, have Harriet Miers, his sweet, amiable and able friend just down the hall to help him.