Miers’ Role in Vetting Limited
Supreme Court nominee Harriet Miers led the selection process on only a small number of judicial nominees in her eight months as White House counsel, an area of expertise often touted by her supporters as a key credential in her nomination.
In addition to the nomination of Chief Justice John Roberts, Miers oversaw the selection of a dozen new U.S. District Court nominees and a single circuit court nominee after taking over the lead role in that process in February from her predecessor, Attorney General Alberto Gonzales, according to statistics from the Senate Judiciary Committee and the White House.
While Roberts’ selection is touted as a major success for the White House, the other nominations on Miers’ watch have all been more or less free from controversy or the need for much heavy lifting from the administration or Senate Republicans.
Customarily, district court nominees — the lowest level of federal judges — are the province of home-state Senators, who often work through their own vetting process with legal scholars in their states. The White House almost always defers to the home-state Senators on those nominees, performing a thorough background check to ensure no legal or ethical problems and then forwarding the name to the Judiciary Committee.
Circuit court nominees generally have been a more nettlesome issue, and were at the heart of this spring’s showdown over judicial filibusters. However, none of the nominees involved in that fight came through during the Miers era in the counsel’s office. Instead, those were all nominees who had been screened, vetted and selected under the Gonzales stewardship.
The one circuit court nominee who has advanced under Miers so far, Judge James Payne of Oklahoma to the 10th U.S. Circuit Court of Appeals, first came through the Bush administration under Gonzales as well, winning confirmation to his District Court seat in 2001.
Miers’ work on the judicial nomination process has been frequently advanced by President Bush and other supporters of the nominee to succeed retiring Justice Sandra Day O’Connor. The Committee for Justice, an interest group with close White House ties, circulated an op-ed Friday in defense of Miers written by former Boston University School of Law dean Ronald Cass, who cited Miers’ role in the selection of conservative jurists as a reason for activists on the right to support her nomination.
“She helped the president select other judges, many of whom were attacked by Democrats for so clearly espousing the very views that conservative critics cry are sacrificed in this nomination,” Cass wrote.
In his press conference the day after the nomination, Bush twice invoked Miers’ role in helping select judges as a sign of her conservative credentials, saying, “she knows the kind of judge I’m looking for.”
“Remember, she was part of the search committee that helped pick Roberts. In other words, she went through the deliberations and talking to these different candidates about what they believe,” Bush said Oct. 4 in the Rose Garden. “She knows exactly the kind of judge I’m looking for.”
Some counsels to Senate Republicans on the Judiciary Committee have rejected this notion, arguing that Miers has not been deeply involved in the issue. They voiced these concerns anonymously to The New York Times last week, saying she had no role in the contentious nomination battles that led up to the narrowly averted filibuster showdown in May.
In an effort to refute this line of attack, Deputy White House Chief of Staff Karl Rove told conservative talk-show host Hugh Hewitt on Friday that Miers had been involved in the selection process of nominees since she was elevated from staff secretary to deputy chief of staff in 2003. Rove, according to a posting on Hewitt’s Web site Friday, said that Miers was part of the ad hoc committee of seven or more staffers who helped pick judicial nominees.
“Rove described her role as detailed and deep, including, as it did for all committee members, the careful examination, analysis and discussion of candidates’ opinions and writings,” Hewitt wrote, calling Bush’s top political adviser “adamant and even vehement” in his support for Miers.
If this is an accurate reflection of her role, it could help soothe conservatives angry about the Miers nomination, as many activists had instead preferred any number of other nominees currently on circuit courts, including Judge Priscilla Owen or Judge Janice Rogers Brown, who have long records as lawyers and judges advancing a conservative philosophy.
Many of those potential selections, such as Owen and filibustered nominee Miguel Estrada, were first offered up in 2001, well before Miers had any role in the process.
But Brown, for example, was first nominated to the federal bench in July 2003, and any evidence that Miers was an advocate for Brown would aid the ongoing effort to settle conservative nerves on the nomination.
White House and Justice Department officials were not available to comment on her role in nominations prior to becoming the president’s top lawyer.
While others questioned how extensive her role was in judicial selections, Hewitt was convinced by Rove on her credentials in the process. “It defies common sense to imagine three years of such meetings leaving other senior staff and the president in the dark about her commitment to originalism,” he wrote.
Since taking over the process as White House counsel, Miers most often had to deal with the leftover nominations from the Gonzales era, such as Owen and Brown. Before Labor Day, the White House had advanced just five new nominees to the federal bench, a handful of picks for the District Courts.
In the past four weeks, seven more District Court picks, in addition to Payne’s nomination to the appellate court seat, were sent to the Judiciary Committee.