The Nine (50 page)

Miers had returned to her role of running the search. Prodded by the unusual public nudge from his wife, Bush said he wanted to nominate a woman for the O’Connor seat, so that was how Miers focused her efforts. During one two-and-a-half-hour session with representatives of conservative activist groups, Miers went through a list of all female Republican appointees to the federal courts of appeals, weighing their suitability for a nomination. Some were appealing but intellectually undistinguished (Edith Brown Clement), others were too politically inflammatory to get through the Senate (Janice Rogers Brown and Edith Jones), others were dismissed as too moderate (Consuelo M. Callahan of the Ninth Circuit). Because women judges, like women generally, tend to be more liberal than their male counterparts—and because Democrats like Clinton appointed more women to the bench than Republicans—the female Republican pool was not large. No candidate stood out, either to Miers or to her superiors.

Still, Miers’s competence in handling this process impressed Bush, who had a history of turning the leader of a search into its target. (In 2000, of course, Dick Cheney had led the vice presidential selection process that led to his own designation.) Unhappy with the available options, Bush mentioned Miers as a candidate to Card. He, in turn, told Bill Kelley, Miers’s deputy, to look into the possibility. Miers learned of Card’s interest, and this time she didn’t rule out a nomination, though neither she nor Kelley took it very seriously. Kelley set to work on a memo about his boss’s qualifications.

O’Connor and Miers were born fifteen years apart—in 1930 and 1945, respectively—and they both grew up in the Southwest at a time when women lawyers were considered an exotic and often unwelcome species. But the differences between them reflected both the swiftly changing fortunes of women in the post–World War II era and more fundamental contrasts in character. O’Connor grew up on a ranch, and Miers was raised in a big city, Dallas. O’Connor was wealthy, Miers wasn’t. Her father ran a struggling real estate business before he had a stroke when she was a freshman at Southern Methodist University, and she won a scholarship and worked to make it through SMU and its law school. When O’Connor came out of Stanford Law in 1952, she received no better offer than a secretary’s job at a law firm. When Miers graduated in 1970, she also found a frosty reception but managed to land a prestigious clerkship with a federal judge who introduced her to the law firm where she would spend the next twenty-four years of her life, Locke Liddell & Sapp.

Once O’Connor settled in Phoenix, she lived in a happy frenzy, juggling legal work, a growing family, and a passion for politics and raucous fun. Miers found a different route to success—narrow focus and dogged effort. By relentless hard work she overcame the customary condescension shown to women lawyers. She was the first woman lawyer at her firm, and its first woman president. Like most big-firm litigators, she tended to represent corporations in lawsuits that settled before trial; companies like Disney and Microsoft, two of her major clients, generally preferred the certainty of a resolution to the risk of a court verdict. Miers’s long hours left little time for diversion. When she was deposed in a lawsuit in 1989, the opposing lawyer asked if she had read a particular book. “I probably can shorten this line of questioning,” Miers said, “if you just asked me when’s the last time I read a whole book.”

Miers’s existence outside the firm amounted to an extension of her life in it. She belonged to the Democratic Party when virtually all of the state’s power brokers did; she contributed $1,000 to Al Gore’s campaign for president in 1988. She worked her way up the hierarchy in the state bar association, a traditional route for advancement in the profession, until she became the first woman president of the Texas bar in 1992. The previous year, she had quit after serving a single two-year term as a member of the Dallas City Council. She felt ill suited for running for office, because she was far more interested in corporate work than in politics. She didn’t litigate constitutional issues or, it would seem, based on the available evidence, give them much thought either.

Like many other single-minded careerists who had focused on their professional life to the exclusion of most everything else, Miers appears to have undergone a spiritual crisis of sorts. For many years, she had an on-and-off romantic relationship with Nathan Hecht, a combative conservative who was a justice on the Texas Supreme Court. Miers was raised a Catholic, but Hecht invited her to join him at Valley View Christian, one of the biggest evangelical churches in Dallas. She did—and it changed her life. As her minister recalled, “Her purpose for life changed. She has a servant’s mentality, and I think that is a tribute to her personal faith. Jesus told his disciples that he didn’t come to be served but to serve. Harriet epitomizes that.”

Not long after Miers’s religious conversion, George W. Bush, who was then running for his first term as governor, ran into some trouble involving a fishing club in east Texas. The caretaker said he had been unjustly fired, and he was suing the members, including Bush. The future governor hired Miers as his lawyer, and she deftly (and quietly) won the case. The up-and-coming politician kept her on as his personal attorney, and Miers embraced George W. Bush with the same born-again passion that she brought to her new church.

On September 21, 2005, Bush held a meeting with a bipartisan group of senators about his plans for filling O’Connor’s seat. To some extent, such “consultations” with senators were a sham; the Bush White House zealously guarded its prerogatives, and no presidential power was more important than the right to select Supreme Court justices. At the meeting, Arlen Specter set his colleagues’ eyes rolling with a preposterous suggestion—that Bush wait until 2006 to nominate anyone, so as to see how Roberts was faring as chief justice, and then to appoint someone who would preserve the Court’s balance. But Bush and his supporters wanted
change
on the Court, not
balance
, and they ignored Specter’s idea. Harry Reid then again mentioned Miers as a possible candidate.

The idea still made sense to the president—the appointment of, in effect, his own ideological clone who would attract no opposition from the Democrats in the Senate. That night Bush summoned Miers to the Oval Office and formally asked her whether she wanted to be considered. This time, she said yes.

Miers’s presence as an official candidate for the seat complicated the search process, which was now accelerating as Roberts’s confirmation grew nearer. (The Judiciary Committee approved Roberts on September 22.) Miers was not asked to bring in any other candidates for interviews with Bush. Only a handful of staffers, including Card, Rove, and Kelley, knew that Miers was a candidate, and they all honored Bush’s wish for a selection process without leaks. On the day that the committee approved Roberts, Kelley called Leonard Leo of the Federalist Society and told him that Miers had become a serious candidate. They met the next day for breakfast at the Ritz-Carlton in Tysons Corner, and Leo said that Miers’s lack of a record would present a problem for conservative groups. “This would be a heavy lift,” he said. But Leo’s message never penetrated the upper levels of the White House. (During the following week, Leo tried to sound out his colleagues in the conservative movement about a Miers nomination, but no one would take the idea seriously. They didn’t approve or disapprove so much as dismiss her appointment as a possibility.) Every White House is an echo chamber of sorts, and leaks often serve the useful purpose of flushing out problems. But since there were no leaks about Miers, no one in the White House knew what the reaction to her nomination would be.

All of the top officials who were considering Miers’s appointment—Bush, Cheney, Card, Rove, and Miers herself—had relatively little idea what Supreme Court justices actually do all day. (“All we do is read and write,” Breyer liked to say. “I used to tell my son if you’re really good at doing homework, you get to do homework for the rest of your life.”) Everyone in Bush’s inner circle came out of the corporate world, where they believed that good judgment and instincts mattered more than reflective analysis. The same was true for corporate lawyers. Bush would never have dreamed of asking prospective members of his cabinet for writing samples, and he didn’t require them of Miers either. For the president, it was not a problem that Miers had no writing to offer.

Talking only to a handful of insiders—and again to Miers on September 28 and 29—Bush grew more and more convinced that she was a good choice. Their last conversations had to do less with whether she belonged on the Supreme Court and more with whom the White House might recruit as knowledgeable surrogates to speak on her behalf. At this point, the search remained leak-free. Remarkably, the first time any news accounts mentioned Miers was just before Roberts was confirmed on September 29, and even then her name appeared only at the end of a long list of possibilities. But when Miers agreed to be considered on September 21, the search process essentially stopped.

Only over the weekend of October 1–2 did the White House begin notifying outsiders that Miers might be the choice. Like the president, Karl Rove played a less active role in the selection of the second justice. Heavily involved in trying to handle the fallout from Katrina, he was facing an additional problem. During September, the prosecutor Patrick Fitzgerald’s criminal investigation into the leak of CIA official Valerie Wilson’s name had reached a critical stage; Rove faced the real possibility of being indicted.

So it was not until Sunday, October 2, that Rove fully engaged with the nomination process. His first call—which revealed whose opinion really mattered—was to James Dobson, the founder and leader of Focus on the Family, to tout Miers’s credentials. Rove assured Dobson that Miers was an evangelical Christian and a strict constructionist. Rove said further that her friend Nathan Hecht of the Texas Supreme Court could vouch for Miers’s soundness on social issues. In fact, Hecht himself would be speaking on a conference call for evangelical leaders the following day. Rove’s stroking of Dobson made political sense, because Bush’s political adviser knew, even if the mainstream media did not, that it was evangelical leaders like Dobson, not Senate Democrats, who had the power to make or break Bush’s nominees.

That Sunday afternoon, Bush formally offered the appointment to Miers. She accepted, and the White House press office spent the evening working in secrecy to produce the biographical material and talking points that would accompany the announcement.

On Monday, October 3, at Bush’s now customary 8:01 a.m., the president and Miers stood side by side in the Oval Office. “This morning, I’m proud to announce that I am nominating Harriet Ellan Miers to serve as associate justice of the Supreme Court. For the past five years, Harriet Miers has served in critical roles in our nation’s government, including one of the most important legal positions in the country, White House counsel. She has devoted her life to the rule of law and the cause of justice,” he said. “I’ve known Harriet for more than a decade. I know her heart, I know her character. I know that Harriet’s mother is proud of her today, and I know her father would be proud of her, too. I’m confident that Harriet Miers will add to the wisdom and character of our judiciary when she is confirmed as the 110th justice of the Supreme Court.”

Miers, unlike Roberts, chose to read her brief remarks: “From my early days as a clerk in the federal district court, and throughout almost three decades of legal practice, bar service, and community service, I have always had a great respect and admiration for the genius that inspired our Constitution and our system of government. My respect and admiration have only grown over these past five years that you have allowed me to serve the American people as a representative of the executive branch.” Then Miers tried to define her judicial philosophy, which she clearly had not developed in her legal career. “The wisdom of those who drafted our Constitution and conceived our nation as functioning with three strong and independent branches have proven truly remarkable,” she began, ungrammatically. “It is the responsibility of every generation to be true to the founders’ vision of the proper role of the courts in our society.” By citing the “founders’ vision,” Miers was positioning herself as an originalist, like Scalia. “If confirmed,” she went on, “I recognize that I will have a tremendous responsibility to keep our judicial system strong, and to help ensure that the courts meet their obligations to strictly apply the laws and the Constitution.” Likewise, the use of the word
strictly
was meant to identify her with strict constructionists, like Rehnquist.

But Miers’s tentative advocacy for herself was already late. By the time her announcement ceremony concluded at 8:14 a.m., the assault on her had already begun.

At 8:12, Manny Miranda sent out an e-mail to his colleagues in the conservative movement. “The president has made possibly the most unqualified choice since Abe Fortas, who had been the president’s lawyer,” Miranda wrote. “The nomination of a nominee with no judicial record is a significant failure for the advisors that the White House gathered around it.” At 8:51, David Frum, a former speech-writer in the Bush White House, offered a similar dismissal of Miers, based on firsthand knowledge. “Harriet Miers is a taut, nervous, anxious personality,” Frum wrote on his blog for the
National Review
. “I am not saying that Harriet Miers is
not
a legal conservative. I am not saying that she is
not
steely. I am saying only that there is no good reason to believe either of these things.”

Later that day, as Rove had promised, Nathan Hecht, as well as another Texas judge, Ed Kinkeade of the federal district court, convened a conference call for conservative leaders, to make an affirmative case for Miers. The call was organized for members of the Arlington Group, an alliance of about sixty “pro-family” groups, and its members included such well-known figures as Gary Bauer of the American Values group, Richard Land of the Southern Baptist Convention, and James Dobson, the national chairman of the group. (The Arlington Group had been a leading advocate for placing constitutional amendments against gay marriage on state ballots in 2004, a strategy that was widely credited with increasing conservative turnout and aiding the Bush campaign.) Dobson presided over the call, saying Rove had suggested that Hecht and Kinkeade could vouch for Miers’s conservative bona fides. This, of course, led to the key question about her candidacy.