Miers Out, Right Awaits New Nominee
This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.

WASHINGTON – As President Bush raced to prepare for his second Supreme Court nomination in less than a month, Republican activists who helped defeat the last pick said they were hopeful the president would choose someone conservative enough to satisfy his base. They were doubtful that he would – or should – find someone agreeable to Democrats.
The withdrawal late Wednesday of White House counsel Harriet Miers, a former Dallas attorney with no judicial record, is expected to set the stage for a more conservative pick whose nomination will almost certainly prompt a bitter Senate feud. It comes at a time when Mr. Bush is reeling from low approval ratings, an ongoing CIA leak investigation, complaints about slow relief efforts after Hurricane Katrina, the defeat of his Social Security reform plan, and a rising death toll in Iraq.
Senate staffers said Mr. Bush could move as soon as Friday to replace Ms. Miers as a way of rallying his base as he approaches the second year of a troubled second term. Speculation focused on a judge for the U.S. Court of Appeals for the 3rd Circuit, Samuel Alito, as a likely replacement because of his solid conservative credentials and his immunity from the cronyism charges that plagued Ms. Miers early on.
Judge Alito was on the short list of nominees that Mr. Bush chose from in naming Ms. Miers to replace Justice O’Connor, as were three female judges on the 5th Circuit Court of Appeals, Edith Jones, Edith Clement, and Priscilla Owen. Court watchers said that each of the women faces serious confirmation hurdles. They said Judge Owen, a favorite of many conservatives, could suffer from her close ties to Mr. Bush’s embattled political adviser, Karl Rove.
Mr. Bush has rebounded from botched nominations before. His first nominee to be secretary of labor, Linda Chavez, and his first nominee to head the Department of Homeland Security, Bernard Kerik, both dropped out when it was learned they employed illegal aliens. Other possible replacements for Ms. Miers whose names circulated yesterday include an Appeals Court judge for the 6th Circuit, Alice Batchelder; an Appeals Court judge for the 4th Circuit, Michael Luttig; and a Republican Senator of Texas, John Cornyn.
Senate Republican leaders agreed over a private dinner in the Capitol building Wednesday night to communicate to Mr. Bush their grave concerns about Ms. Miers, a source familiar with the dinner said. The source said the senators expressed doubts about Ms. Miers’s qualifications based on their private meetings with her and because of past speeches in which she seemed to embrace a liberal view of the courts. One Republican senator is said to have told Ms. Miers directly that she flunked her interview.
Republicans pressed for the president to move quickly in replacing Ms. Miers, something that would be made easier by the fact that the White House had vetted several candidates in preparing for two nominations over the past four months. Senator Hutchison, a Republican of Texas who has been a staunch defender of Ms. Miers, said Ms. Miers would continue to play a role in the selection process.
Conservatives said they hoped a nominee could still be put in place this fall to rule on several upcoming court cases. The court is scheduled to hear cases challenging Oregon’s assisted suicide law and a New Hampshire law that requires parental consent for minors seeking an abortion. Senator Brownback, a Republican of Kansas who sits on the Judiciary Committee, said he looked forward to “an open debate” on the issue of abortion during the next confirmation process.
Ms. Miers requested that she be withdrawn from consideration late Wednesday, a White House spokesman, Scott McClellan, said. Mr. McClellan said Ms. Miers was concerned that requests for information about her White House tenure by the Senate Judiciary Committee would compromise executive privilege. Mr. Bush announced the withdrawal early yesterday morning, saying the decision reflected her “deep respect” for the separation of powers and vowing to name a replacement in a “timely manner.”
Democrats accused Mr. Bush of using the conflict over documents as a convenient way of saving face with his conservative base, with the ranking Democrat on the Senate Judiciary Committee describing the reason put forward for the withdrawal as “a red herring.” Republicans took differing public stances on the reasons for the withdrawal, with some casting blame on activist groups for disrupting the process and others calling the decision a victory for conservatism.
Senator Schumer, a Democrat of New York who sits on the Judiciary Committee, said he thought Ms. Miers may have simply been unqualified to sit on the bench.
“Harriet Miers is a fine and capable person,” Mr. Schumer said in a statement. “But this was clearly the wrong position for her. Her gracious withdrawal saves Harriet Miers and the nation from a difficult and agonizing process and decision.”
Mr. Bush now must find a nominee who will not reignite a conservative backlash without stoking the same sort of Democratic opposition that held up several nominees to the federal bench prior to a bipartisan compromise in May. Some conservative senators and a number of prominent activists said yesterday that Mr. Bush should not back down from a Senate fight – suggesting that the troubled Miers nomination may have simply been the prelude to an open political brawl.
“I think everybody’s anxious for the president to exhibit the bold and principled leadership we expected in replacing Sandra Day O’Connor,” a high-level Republican Senate staffer said on condition of anonymity. “And I think people are very hopeful that he will be the leader we all know him to be and the conservative that we know him to be.”