On October 3, 2005, Harriet Miers was nominated for Associate Justice of the U.S. Supreme Court by President George W. Bush to replace retired Associate Justice Sandra Day O'Connor. Miers was, at the time, White House Counsel, and had previously served in several roles both during Bush's tenure as Governor of Texas and President.
Miers's nomination was negatively received across the political spectrum, with critics charging that she did not have enough judicial experience to sit on the court. Conservative commentator David Frum castigated the selection as an "unforced error", and Robert Bork (himself a failed Supreme Court nominee) denounced it a "disaster" and "a slap in the face to the conservatives who've been building up a conservative legal movement for the last 20 years." Hearings before the United States Senate Judiciary Committee had been scheduled to begin on November 7, and members of the Republican leadership had stated before the nomination that they aimed to have the nominee confirmed before Thanksgiving (November 24). Miers withdrew her nomination on October 27, 2005, and Bush nominated Samuel Alito four days later.
Selection process
On July 1, 2005, Sandra Day O'Connor announced her plan to retire as an associate justice of the U.S. Supreme Court, effective as of the date that her replacement was confirmed by the United States Senate. Bush appointed Miers as head of the search committee for candidates to replace O'Connor. On July 19, Bush announced that he had chosen John Roberts as O'Connor's replacement. After William Rehnquist died of complications from thyroid cancer on September 3, Bush withdrew this nomination and renominated Roberts for Chief Justice, to which he was confirmed.
Meanwhile, Senate Minority Leader Harry Reid (D-Nevada) recommended Miers as O'Connor's successor."I had recommended that the President consider nominating Ms. Miers because I was impressed with her record of achievement as the managing partner of a major Texas law firm and the first woman president of the Texas Bar Association. In those roles she was a strong supporter of law firm diversity policies and a leader in promoting legal services for the poor. ""I like Harriet Miers. As White House Counsel, she has worked with me in a courteous and professional manner. I am also impressed with the fact that she was a trailblazer for women as managing partner of a major Dallas law firm and as the first woman president of the Texas Bar Association. In my view, the Supreme Court would benefit from the addition of a justice who has real experience as a practicing lawyer. The current justices have all been chosen from the lower federal courts. A nominee with relevant non-judicial experience would bring a different and useful perspective to the Court. ""I continue to believe that Harriet Miers received a raw deal. She is an accomplished lawyer, a trailblazer for women and a strong advocate of legal services for the poor. Not only was she denied the up-down vote that my Republican colleagues say every nominee deserves, but she was never even afforded the chance to make her case to the Judiciary Committee." Bush agreed with Reid's suggestion, factoring comments by Senate Judiciary Committee Chairman Arlen Specter (R-Pennsylvania) and ranking member Patrick Leahy (D-Vermont) that Bush's nominees should be outside of the appellate court system. First Lady Laura Bush publicly expressed hope that he would nominate a woman.
On October 3, Bush nominated Miers to succeed O'Connor.
Miers's background
Education Miers attended Southern Methodist University, where she received a bachelor's degree in mathematics (1967) and a Juris Doctor degree (1970). However, Miers' education would later prove troublesome during her nomination process. Her academic background went against a tradition that had gained momentum since the late 1970s of appointing justices who had received their collegiate, legal, and other graduate education at elite institutions. At the time of her nomination, all sitting justices hailed from the leading "Top 14" law schools (specifically Yale, Harvard, Stanford, Columbia, and Northwestern).
Consequently, as the nomination process developed, individuals across the partisan spectrum came to both denigrate Miers on account of her degrees as well as to paint them as a non-issue. Addressing her education, conservative columnist and psychiatrist Charles Krauthammer contended that "the Supreme Court is an elite institution. It is not one of the 'popular' branches of government"; conversely, Harry Reid (a graduate of George Washington University Law School's part-time program) stated he did not feel an Ivy League pedigree was a necessary criterion for placement on the court. However, in the long run, discussion over Miers' academic credentials was overshadowed by the focus placed on her career history and ties to the Bush administration, with fears of "snobbery" calls quieting discussion.
Professional experience Miers had clerked for the Chief Judge of the United States District Court for the Northern District of Texas, but had never served as a judge. She had neither taught nor written to any substantial extent on law. In private practice, as a corporate litigator at the law firm Locke Lord, Miers had courtroom experience, but a scant and undistinguished track record of litigating in federal court (almost none litigating constitutional issues), and had never argued a case before the Supreme Court.
Speaking to Miers's lack of credentials, the White House quickly advanced the defense that 41 of the 110 Supreme Court Justices appointed to date had never served as a judge prior to their nomination. Some examples during the 20th century include William Moody (appointed 1906), Charles Evans Hughes (1910), James McReynolds (1914), Louis Brandeis (1916), George Sutherland (1922), Pierce Butler (1922), Harlan F. Stone (1925), Owen Roberts (1930), Stanley F. Reed (1938), Felix Frankfurter (1939), William O. Douglas (1939), Frank Murphy (1940), Robert Jackson (1941), Harold Burton (1945), Tom C. Clark (1949), Earl Warren (1953), Arthur Goldberg (1962), Abe Fortas (1965), Lewis Powell (1972), and William Rehnquist (1972). The White House's attempt to use this to placate opposition was at best ineffectual, and at worst, backfired: offering the comparison to Fortas or particularly Warren further inflamed opposition among conservatives, who do not look upon either as a great exemplar of the kind of Supreme Court justice desired. The White House also argued that 10 of the 34 Justices appointed since 1933 were appointed from positions within the President's administration (as was the case with Miers). These Justices include the aforementioned Powell, Warren, Frankfurter, and Douglas, as well as Arthur Goldberg and Tom C. Clark.
Reid, who had previously floated Miers as an example of an acceptable nominee (further inflaming conservative hostility), issued a statement:
In my view, the Supreme Court would benefit from the addition of a justice who has real experience as a practicing lawyer. The current justices have all been chosen from the lower federal courts. A nominee with relevant non-judicial experience would bring a different and useful perspective to the Court.
Nomination issues Because little was known about Miers' position on divisive issues, and because she had no prior experience as a judge, her nomination was subject to debate on both sides. Many critics were concerned that her inner-circle relationship with the president and his staff could lead to conflicts of interests in court cases. Republican Senator Sam Brownback stated on Good Morning America that "[t]here's precious little to go on and a deep concern that this would be a Souter-type candidate". David Souter had been nominated by George H. W. Bush under the expectation that he would be a conservative vote, yet he lacked a "paper trail" of prior decisions to justify these expectations, and turned out to be one of the court's more liberal members.
Positions on issues that might have come before the court Abortion The subject of Roe v. Wade, among other abortion-related Supreme Court precedents, was highly topical in this nomination, in part because O'Connor had voted to overturn a number of state restrictions on abortion, often in narrowly divided 5–4 decisions.
As the confirmation process proceeded, more became known about Miers' personal/judicial views on abortion. In 1989, when Miers was running for the Dallas City Council, she allegedly filled out a survey for the anti-abortion group Texas United for Life.Note that the document referenced does not contain her signature. The questionnaire sought to gauge candidates' feelings on the use of constitutional amendments or state laws to ban abortions in the event the Supreme Court overturned a 1973 ruling that established abortion rights. The questionnaire asked "If Congress passes a Human Life Amendment to the Constitution that would prohibit abortion except when it was necessary to prevent the death of the mother, would you actively support its ratification by the Texas Legislature." Miers answered "yes" to this question and all others listed.
Miers said in 1992 that she felt Supreme Court nominees should not be asked about how they would rule on abortion issues. In 1993, when the American Bar Association (ABA) opted to take a stance in favor of legal access to abortion, Miers fought to have the full membership of the ABA vote on the topic: "If we were going to take a position on this divisive issue, the members should have been able to vote."
It is not clear what impact, if any, her personal views would have had on her judicial rulings. The religious beliefs of nominees on abortion and other controversial social issues have been a significant part of confirmation hearings for nominees thought to have traditional religious beliefs. Some civil rights activists (notably the Catholic League for Civil and Religious Rights, Notre Dame law professor Charles Rice in the National Review, the civil rights group the Center for Jewish Values and the conservative Catholic group Fidelis) consider such interrogation by senators to be a violation of the constitutional prohibition of any religious tests for federal office.
Senator Brownback, a member of the Judiciary Committee, said there was a "good chance" he would vote against Miers if she testified that Roe v. Wade was "settled law".
Miers withdrew her nomination shortly after an awkward dispute she had in a private talk with Sen. Arlen Specter of Pennsylvania, then the Republican chairman of the Senate Judiciary Committee. At issue was what she had said during their private talk about the right to privacy, a major underpinning of Roe v. Wade.
Affirmative action As President of the Texas State Bar, Miers supported affirmative action, going so far as to continue a quota system for women and ethnic minorities practicing law in the state. Bob Dunn, the outgoing president of the organization, described Miers as "certainly one of the leaders" in supporting the quota system.
The right to keep and bear arms Miers included the "right to keep and bear arms" in a list of "precious liberties" contained in a commentary she authored in 1992.
Gay rights Although Miers did not make her position clear on gay rights, she hinted at her views in answering a questionnaire submitted to her by a Texas gay rights group during her 1989 campaign for a Dallas City Council position. Miers indicated on the questionnaire that she supported civil rights for homosexuals, but opposed the repeal of the sodomy laws that were ultimately overturned by a 6–3 decision (with Justice O'Connor in the majority) in Lawrence v. Texas. Miers was mistakenly thought to have served on the board of the ex-gay organization Exodus International; she had actually served on the board of Exodus Ministries, a former prisoner rehabilitation organization.
Balance of powers