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Miers nomination plagued by missteps

By nearly all accounts, the 24 days of the Harriet Miers nomination to the Supreme Court was hobbled by a succession of miscalculations.
White House counsel and former Supreme Court justice nominee Harriet Miers walks into the White House Thursday.Charles Dharapak / AP
/ Source: a href="" linktype="External" resizable="true" status="true" scrollbars="true">The Washington Post</a

For Harriet Miers, the "murder boards" were aptly named. Day after day in a room in the Justice Department, colleagues from the Bush administration grilled her on constitutional law, her legal background and her past speeches in practice sessions meant to mimic Senate hearings.

Her uncertain, underwhelming responses left her confirmation managers so disturbed they decided not to open up the sessions to the friendly outside lawyers they usually invite to participate in prepping key nominees.

It was clear that Miers was going to need to "hit a grand slam homer" before the Senate Judiciary Committee to win confirmation to the Supreme Court, as one adviser to the White House put it. "Her performance at the murder boards meant that people weren't confident she'd get the grand slam."

By nearly all accounts, the 24 days of the Miers nomination was hobbled by a succession of miscalculations. President Bush bypassed his own selection process to pick Miers, his onetime personal lawyer and White House counsel since February. His aides ignored warnings by some of the administration's closest conservative allies that she would prove difficult to confirm, and took for granted that its base would ultimately stick with the president.

And in perhaps the biggest misjudgment, Bush assumed that Miers would somehow shine in a Washington klieg light she had never before faced.

It did not take a call from Senate Majority Leader Bill Frist (R-Tenn.) to convince the White House that Miers's nomination was in trouble. By the time Miers withdrew her name from consideration yesterday morning, her own colleagues had all but despaired of rescuing her nomination. With top Bush aides facing possible indictment as early as today, the White House concluded that it was time to move on and brace for the more threatening crisis.

"This thing never got off the launching pad very well," said a senior administration official, who spoke on the condition of anonymity because public airing of self-criticism is not encouraged in the White House.

"What we ran up against may be a different bar and maybe discomfort with the unfamiliar," another official said. "Did we learn anything? I don't know."

‘This isn’t a cakewalk’
On Sept. 23, the same day the Senate Judiciary Committee was voting to support John G. Roberts Jr. as the new chief justice, a conservative activist involved in the confirmation process got a call from the White House about Miers. "It was 'We'd like you to take the temperature,' " the activist recalled. How would fellow conservatives react if the little-known White House staff member became the next court nominee?

This conservative, who spoke on the condition of anonymity to share a confidential conversation, spent that night thinking hard about what to say. The next morning, a Saturday, he had a 2 1/2 -hour meeting at the White House. "My short answer," he said, "was this is a heavy lift. It was going to be, at least preliminarily a bloodbath — probably for a week or maybe slightly more." But he also said that if the White House handled it right, "you'd probably get people to a wait-and-see mode," and she could be confirmed. "I was obviously proven wrong."

"All of us who were supporting the White House on this expressed that we have a job here; this isn't a cakewalk," said Jay Sekulow, another lawyer advising the Bush team on the Miers nomination. Others flatly protested and warned against naming her.

Miers had not been prominent on anyone's short list but Bush's. As a longtime confidante from his home state of Texas, Miers had won Bush's trust and affection. She had run the judicial selection process, and impressed Bush and Vice President Cheney in private sessions by pressing to make sure candidates were conservative enough.

As Bush thought about the next opening he would have to fill, he focused increasingly on Miers. He had already settled on three criteria, according to a Republican lawyer close to the selection process: He wanted a conservative, a woman and a nominee who would be confirmed as successfully as Roberts was. The next nominee needed to be someone who would follow Roberts's lead as part of a new voting bloc that would steer the court to the right, not necessarily an independent figure with a long track record.

But as other possible female candidates either asked not to be considered or were ruled out for various reasons, Miers looked better and better. "There was one person left standing," the Republican lawyer said. It was a back-channel process. Since Miers was in charge of the selection apparatus, White House Chief of Staff Andrew H. Card Jr. instructed Miers's deputy, William Kelley, to secretly vet her. She was not told she was a candidate until two weeks before her nomination, and no one had done a thorough search of her background to turn up past writings and speeches that would later become public.

Recognizing that conservatives might not find Miers exciting, Deputy Chief of Staff Karl Rove tried to lock up a few important figures who would back her, mainly James C. Dobson, head of the evangelical Focus on the Family. As Dobson later recalled it, Rove assured him "that Harriet Miers is an evangelical Christian [and] that she is from a very conservative church, which is almost universally pro-life."

That was enough for Dobson, and Dobson's blessing was enough for Rove.

Dismay on the right
The morning of Oct. 3, Manuel A. Miranda, leader of a group called the Third Branch Conference that pushes for conservative judges, woke up before dawn. He flipped on his computer and found an e-mail that a friend had sent at 6:06 a.m. with an Associated Press headline reporting that Bush would nominate Miers to the court.

A lawyer who had worked on judicial nominations for Frist before stepping down two years ago while under investigation for reading Democratic documents, Miranda had by this time heard Miers's name mentioned as a possible choice for about a week. "I thought it was a joke," he recalls. "I dismissed it as some sycophant floating her name just to get their own nomination some day."

By 7:32 a.m., half an hour before Bush would go on television to announce his choice, Miranda tapped out a quick note to his e-mail list that said, "I fear the president has made the worse [sic] choice I could have imagined." At 8:12, two minutes before Bush would finish introducing his nominee, Miranda sent out a second dispatch: "The reaction of many conservatives today will be that the president has made possibly the most unqualified choice since Abe Fortas, who had been the president's lawyer."

By happenstance, William Kristol, editor of the Weekly Standard, was already scheduled to appear on Fox News Channel, and he did not hold back. "I think it's politically risky and I think it sends a bad signal," he declared. After returning to his office, he posted a more stinging assessment on the magazine's Web site, pronouncing himself "disappointed, depressed and demoralized."

Others followed, including former Bush speechwriter David Frum, columnists Charles Krauthammer and George Will, former judge Robert H. Bork, radio host Rush Limbaugh, and a coterie of activists. "Things started to run out of control," said a Republican strategist working for her nomination.

In the past, the White House had been able to tamp down conservative unrest over Bush policies on federal spending, Medicare and immigration. But Rove, the president's chief enforcer and ambassador to the right, was recalled to appear before the grand jury investigating the leaking of CIA operative Valerie Plame's name, and insiders differ over how involved he really was able to be.

Other aides were occupied with matters related to the leak case as well, including Miers deputy Kelley. Former senator Fred D. Thomson (R-Tenn.), who helped shepherd Roberts to confirmation, bowed out for Miers because of work commitments, and Steve Schmidt, a White House counselor who also worked on Roberts, left for Iraq for several weeks.

With Bush at a low ebb in the polls and conservatives itching for a champion on the court, years of frustration boiled over public view. "The White House didn't understand the independence of the conservative movement," Kristol said. Usually, he said, "the White House rolls out the big guns and everyone pretty much falls in line." But a call from Rove left him unpersuaded this time. "What this shows is that for conservatives, the Supreme Court is so central" they were unwilling to stay silent.

"The expectations were so high," said Tony Perkins, president of the Family Research Council, a conservative activist group, "this nomination left people scratching their heads -- and in some cases stamping their feet and pounding their fists -- because they were disappointed."

For a time, the White House dismissed the punditocracy and activists, focusing on the only people who had a vote -- the senators. But a series of missteps left some of them alienated as well, including Judiciary Chairman Arlen Specter (R-Pa.), who was miffed that she publicly disagreed with his account of their conversation on privacy rights. Ultimately, Specter rejected Miers's answers to a committee questionnaire as sloppy and in complete, ordering her to redo them.

‘Step it up a notch’
"Her one-on-one meetings didn't go as well as hoped," said Sen. Lindsey O. Graham (R-S.C.), who told the White House that she "needed to step it up a notch."

As Miranda and other activists used Web sites and television advertisements to pressure Bush to withdraw Miers, Graham and Sen. Sam Brownback (R-Kan.) joined Democrats in demanding that the White House turn over papers from her work there. Because it was bipartisan, the request was harder for the White House to dismiss, and aides convening on Monday fretted over what they saw as an irreconcilable impasse.

"That was the day things really went down," said the GOP strategist working for Miers.

Fueling the discontent were fresh reports on Miers's history on issues such as affirmative action that had escaped White House vetters. Most damaging to her among Republicans was a Washington Post article on Wednesday recounting a speech Miers gave in 1993, in which she suggested that "self-determination" should guide decisions about abortion and warning against "legislating religion or morality."

That was enough for Concerned Women for America, one of the nation's largest evangelical groups. As White House envoy Dan Coats, a former Republican senator from Indiana, met with the group's chief counsel, Jan LaRue, seeking support on Wednesday, LaRue was suddenly called out of the room. The group's chairwoman, Beverly LaHaye, had confirmed a decision to oppose Miers. "I went back into the senator," LaRue said, "and informed him that we were calling for her withdrawal."

That was not the only ominous sign Wednesday. Frist met with Bush and other top lawmakers at the White House in the morning to talk about budget issues, but privately, sources close to him said, he informed the president that Miers was in deep trouble. Using the vice president's office just off the Senate floor, Sen. John Cornyn (R-Tex.) met with Ed Gillespie and Leonard A. Leo, strategists working on behalf of Miers.

‘Used to big egos’
But Cornyn, a close Bush ally, emerged discouraged. At 6 p.m., he ran into Sen. Charles E. Grassley (R-Iowa), who tried to buck him up. Cornyn thanked Grassley but then mused in an interview about the negative reaction to Miers. "I mean, I don't know what people were expecting. She's kind of shy and reserved," he said, and then he paused. "But this isn't a place that smiles with favor on shy, retiring personalities. Everyone here is used to big egos."

More conservatives were preparing to abandon Miers. Even Dobson, the most prominent activist on her side, said yesterday that "based on what we now know about Miss Miers, it appears that we would not have been able to support her candidacy."

The clash over her White House documents loomed large. To some Bush aides, it appeared to be the deal-breaker: The president, in defense of executive privilege, would never hand them over, and the senators, with nothing else to go on, were insistent they had to have them.

Miers called Bush in the White House residence at 8:30 p.m. Wednesday. She said she would withdraw her nomination. Bush agreed. "It was a growing accumulation of things that resulted in her finally coming to the decision that there was probably one thing that she could not overcome, and that was the production of documents," said Coats.

The two kept the decision secret from nearly everyone else. Frist called Card at 9:30 p.m. to emphasize his concerns. White House aides finished Miers's second response to the Senate questionnaire and delivered it at 11:40 p.m., more than three hours after she decided to abandon her nomination. The 59-page document makes it clear that the struggle to learn about her advice to Bush would have continued had she stayed in the fray. Asked for details about her work, she submitted 135 boilerplate, publicly available fact sheets on White House policies and 67 statements on pending legislation.

Her advocates continued working on her behalf as well. Sekulow was on C-SPAN at 6:45 a.m. yesterday touting her. But at 8:30 a.m., Miers walked into the Oval Office to hand Bush her official letter withdrawing. The White House announced it at 9 a.m.

And Miers went back to her office as White House counsel to begin the search for a new nominee.

Staff writers Charles Babington, Jo Becker and Juliet Eilperin contributed to this report.