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Bush Blinks and Miers Pays the Price
Bush Blinks and Miers Pays the Price

JURIST Guest Columnist Scott Gerber of Ohio Northern University Pettit College of Law says that although, in Harriet Miers, President Bush apparently put a premium on picking a Supreme Court nominee loyal to him, when the political chips were down he wasn't very loyal to her…


President George W. Bush informed the nation on Thursday that he had "reluctantly" accepted Harriet Miers's decision to withdraw her nomination to the Supreme Court of the United States. Miers had been nominated by the President on October 3rd to replace the retiring Sandra Day O'Connor. The president had said when announcing the nomination that "one person" – Miers – "stood out as exceptionally well suited to sit on the Highest Court of our nation."

Even President Bush's detractors have grudgingly acknowledged over the years how loyal the president is to those who have served him well. The fact that Karl Rove didn't lose his job the instant the president learned that his chief political strategist had played a role in leaking the identity of a CIA operative who is married to a harsh critic of the president's war with Iraq is the most recent example of the president's loyalty. (Note: By the time you read this op-ed, Rove may have been indicted by a grand jury and may have resigned. In short, the president stuck by Rove longer than he had earlier suggested he would do, and longer than he probably should have done. That's what friends do.)

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 Text: Miers nomination withdrawal letter | Topic: Harriet Miers | Video: Miers nomination [White House]

But Miers, whom no one ever suggested had done anything wrong, let alone illegal, was hung out to dry by the president, apparently because conservatives – that's right, conservatives, not liberals – demanded it in a political crusade that Senate Judiciary Committee chairman Arlen Specter (R-PA) correctly called "disgraceful." (The explanation proffered by both the president and the nominee about wanting to avoid a potential showdown over White House documents is almost certainly a smokescreen, as the Administration's refusal to release documents relating to Vice President Dick Cheney's meetings with energy interests makes plain.)

Bluntly stated, instead of going down in the history books as only the third woman ever to serve on the U.S. Supreme Court, Harriet Miers will be forever linked as a footnote to the likes of Douglas Ginsburg, Abe Fortas, Caleb Cushing, and George Williams. For readers not schooled in the Trivial Pursuit approach to Supreme Court history, here's a playing-card sized summary of these four infamous nominees:

  • Douglas Ginsburg withdrew his name from consideration in 1987 to replace Justice Lewis F. Powell after it became known that he had smoked marijuana as a student and as a law professor.
  • Abe Fortas withdrew his name from consideration in 1968 to replace Chief Justice Earl Warren, and eventually resigned his seat as an associate justice of the Supreme Court, after it was revealed that, while on the bench, he had engaged in financial improprieties.
  • Caleb Cushing withdrew his name from consideration in 1874 to replace Chief Justice Salmon P. Chase because he was unable to overcome the perception that he was a political chameleon.
  • George Williams withdrew his name from consideration in 1874 to replace Chief Justice Chase because of the harsh criticism he had received about his legal acumen.

A couple of other nominations also have been withdrawn for less embarrassing reasons during the Court's 216-year history – most notably, of course, John Roberts's nomination to replace Justice O'Connor was withdrawn so that President Bush could nominate Roberts to replace Chief Justice William Rehnquist. But Miers almost certainly will be linked in history to Ginsburg, Fortas, Cushing, and Williams rather than to Roberts.

And for what? Because conservatives were unwilling to accept the president's repeated assurances that Miers was a conservative? That sounds an awful lot like what happened to Caleb Cushing. Or was it because conservatives didn't think Miers was smart enough? (After all, her law degree is from Southern Methodist University, not Yale University.) That sounds like what happened to George Williams.

At least no one stooped so low as to accuse Miers of taking drugs or engaging in financial improprieties as Douglas Ginsburg and Abe Fortas had done, respectively…

On a happier note, President Bush indicated in his statement "reluctantly" accepting Miers's decision to withdraw her nomination to the Supreme Court that he was "honored" that she "will continue to serve our nation as White House counsel."

If I were Harriet Miers, I would say thanks, but no thanks. As the saying goes, with friends like that, who needs enemies?

Scott D. Gerber is a law professor at Ohio Northern University. His legal thriller, The Law Clerk, will be published in February by Seven Locks Press.
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