A Vacancy on the Court

Oops! The Failed Nomination of Harriet Miers

On October 3, 2005, President Bush nominated Harriet Miers to replace the retiring Justice O'Connor on the Supreme Court. Twenty-four days later, she announced her withdrawal from consideration.

These pages will remain as an archive on the Miers nomination. A quick overview of why the nomination failed is provided here. The path and the pitfalls that await the president and the next nominee are presented in various relevant pages, especially in the setting.

Why the Nomination Failed

As noted repeatedly throughout this site, the setting in which a nomination occurs is critical for assessing the potential for controversy. The O'Connor vacancy itself adds considerably to the potential for controversy because she is one of only two women on the Court and because she has been a critical swing vote in numerous 5-4 decisions handed down by the Court. In selecting Miers, President Bush clearly addressed the issue of sex and he had hoped he had addressed the issue of her ideology. Apparently not.

Many Republicans, especially those who are social conservatives, have long hoped to secure a Supreme Court that would align constitutional interpretation with their socially conservative values. This is not an easy task because the Constitution is not at heart a conservative document. But ever since the Warren Court gained the enmity and stirred the passions of social conservatives by changing the American political and social landscape, conservatives have sought to put certain things back into their Pandora's box while retaining Hope, as expressed in their Blueprint for Judicial Reform published in 1981 by the Free Congress Foundation, that their views could some day dominate the Court. It is their belief that day has come, so the nomination of someone unfamiliar to them, lacking obvious credentials that firmly assert a conservative jurisprudence, is a slap in the face by a president who presumably supports their cause.

In addition to the opposition from within the president's own ranks, there was a clear lack of enthusiasm on the part of many Republicans for the nominee. To suggest that her credentials and qualifications to serve on the Court somehow exceeded those of numerous other Republican favorites was a stretch for the president, and few were persuaded. The lack of experience that would provide Miers the opportunity to delve into major constitutional issues made many quite uncomfortable.

The Democrats were hardly a factor. Miers could perhaps be less objectionable than some darling of the conservatives. Nonetheless, concern about whether there were secret assurances or a nod and a wink with the president about how Miers would come down on various issues certainly gave them pause. Now they face the prospect that Bush, in yielding to pressure from his right wing, will nominate someone more amenable to them who has a record that only conservatives could love.

The Nominee

The White House provided this brief biographical sketch of Harriet Miers when President Bush announced his intention on November 17, 2004, to appoint Harriet Miers to be Counsel to the President.
Ms. Miers currently serves as Assistant to the President and Deputy Chief of Staff. Most recently, she served as Assistant to the President and Staff Secretary. Prior to joining the White House staff, Ms. Miers was Co-Managing Partner at Locke Liddell & Sapp, LLP, where she helped manage an over 400-lawyer firm. Previously, she was President of Locke, Purnell, Rain & Harrell, where she worked for 26 years. In 1992, Ms. Miers became the first woman elected Texas State Bar President following her selection in 1985 as the first woman to become President of the Dallas Bar Association. She also served as a Member-At-Large on the Dallas City Council. Ms. Miers received her bachelor's degree and J.D. from Southern Methodist University.

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