INDEPTH: U.S. POLITICS
Stepping aside
Bush's court pick stands down
CBC News Online | Oct. 27, 2005
 White House counsel Harriet Miers listens to President Bush in the Oval Office at the time of her nomination, Monday, Oct. 3. (AP Photo/Ron Edmonds)
Seems U.S. President George W. Bush is having some difficulty a year after winning a second term. His approval ratings hit new lows – slipping below 40 per cent by the middle of October.
In the wake of stinging criticism about a lack of federal response to hurricane Katrina, as the war in Iraq dragged on and more and more Americans returned in body bags, and as senior White House officials faced the possibility of criminal charges, Bush could've used a boost.
He didn't get it.
On Oct. 27, Harriet Miers stepped aside as Bush's choice to fill the vacancy on the Supreme Court created by the retirement of Sandra Day O'Connor. Miers' decision came 24 days after her surprise nomination. It was a surprise because nobody expected a woman who was the president's counsel and who had no prior judicial experience to be nominated to sit on the highest court in the country.
Miers is a close friend of Bush and had known him since he was governor of Texas. She had been the first woman to serve as president of the Dallas Bar Association – as well as the Texas state bar.
FAILED SUPREME COURT NOMINEES
Douglas Ginsburg - 1987
President Ronald Reagan intended to nominate Ginsburg, a judge on the U.S. Court of Appeals at the time, to the Supreme Court. But, at the peak of the "Just Say No" era, it was revealed that Ginsburg had used marijuana as a student and as a professor at Harvard Law School. Ginsburg withdrew his nomination.
Robert Bork - 1987
Reagan nominated Robert Bork, an Appeal Court judge who had been solicitor general under Richard Nixon, to the Supreme Court. Groups supporting civil rights and women's rights strongly opposed his nomination and it was rejected in the Senate by a 58-42 vote. Bork's name, used as a verb, has become synonymous with forcing the rejection of a Supreme Court nominee.
Harold Carswell - 1970
Carswell, an Appeal Court judge at the time, was nominated to the Supreme Court by President Nixon. Critics pointed to the high reversal rate of his judicial decisions and to his support of white supremacy during elections in Georgia in the 1940s. His nomination was rejected by the Senate.
Clement Haynsworth - 1969
Haynsworth's nomination, put forward by Nixon, was defeated in the Senate. Democrats and the NAACP opposed his nomination, saying Haynsworth wrote decisions favouring racial segregation.
John J. Parker - 1930
President Herbert Hoover nominated Parker to the Supreme Court, but his nomination was opposed by labour groups, because of his decision regarding a mine workers union, and by the NAACP because of remarks he made while running for governor of North Carolina in 1920.
When he was governor, Bush appointed Miers to head the Texas Lottery Commission. She held that post between 1995 and 2000. In Washington, Miers also served as assistant to the president, deputy chief of staff and staff secretary at the White House.
Not a traditional route to the Supreme Court.
Immediately, her nomination came under scrutiny. Several powerful Republicans questioned whether she was conservative enough.
CBC-TV's Henry Champ said Bush did not expect the backlash over the nomination, especially from members of his own party.
"There's no question the president and his staff made a major miscalculation in thinking that their conservative base would support Miss Miers' nomination. They didn't," Champ said. "They said she wasn't strong enough on their issues, which are generally centred on right to life and family values."
Meanwhile, the Democrats weren't impressed either. They argued that Miers lacked the stature to be on the bench and that she wasn't an expert on constitutional law.
"The public zeroed in on the issue of cronyism – that Miss Miers would not have been given this nomination had it not been for her long years of loyalty to the president and her friendship," Champ added.
The grumbling – especially from conservatives – got louder as senators tried to learn more about where Miers' views lay. The Senate judiciary committee, which was dealing – in part – with the nature of her White House work, had her fill out a questionnaire. It was deemed inadequate. She was asked to fill out a second one and was due to hand it in the day before she announced her withdrawal.
In her withdrawal letter, Miers said she was worried that the confirmation process "presents a burden for the White House and our staff that is not in the best interest of the country."
Among the concerns she cited was that members of the Senate wanted access to documents related to her White House service. Those documents were to be used to judge her fitness for the Supreme Court.
"I have been informed repeatedly that in lieu of records, I would be expected to testify about my service in the White House to demonstrate my experience and judicial philosophy," she wrote.
With opposition from both Democrats and Republicans, there was a real possibility that Miers' nomination would not survive the Senate confirmation process. That would be a major blow to Bush.
Bush said he was reluctantly accepting Miers' decision to withdraw.
"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 in a written statement.
"Harriet Miers' decision," Bush said, "demonstrates her deep respect for this essential aspect of the Constitutional separation of powers and confirms my deep respect and admiration for her."
People for the American Way, a left-wing lobby group, said Miers and the White House had surrendered to ultra-conservatives.
"The ultra-right wing dominance of Republican party politics is complete, and they have dealt a terrible blow to an already weakened president and his administration," said Ralph Neas, the organization's president.
Neas urged Bush to resist the pressure to nominate an ultraconservative.
Champ suggests that's not likely to happen.
"There's no question that the president is looking at his next choice of nomination. He'll likely go for a very strong conservative candidate, but that is only going to draw more fire from the Democrats who, of course, on ideological terms will want to see that nomination stopped," Champ said.
"It's easy to say that this president is staggering and is suffering a very bad week."
Within 72 hours, Bush came up with a new nominee. Samuel Alito, a judge on the 3rd U.S. Circuit Court of Appeals in Philadelphia, is known for his conservatism. Bush noted he has more experience as a judge than any Supreme Court nominee in the past 70 years.
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