Conservative legal scholars have tagged Souter's selection as one of the biggest blunders of a Republican president in the 20th century.
Bush would not make the same mistake his father had. He had vowed to nominate justices like Thomas and Scalia, and his advisers methodically looked for nominees who would fit that bill. They were looking for solid judicial conservatives with proven track records. They didn't want an unknown like Souter who would prove to be liberal; and they didn't want another Anthony Kennedy, a moderate conservative they believed had drifted to the left in his years on the Court.
The advisers had come to believe that a nominee's service in the executive branch, which typically brought with it critical media coverage, would stiffen a justice's resolve once those critical editorials from top media outlets like the New York Times started rolling in. They cast a wide net, and they narrowed it down to a handful of top prospects.
John Roberts, a highly regarded Supreme Court advocate who had served in two Republican administrations, was one. In his short tenure on the D.C.-based federal appeals court, he had impressed conservative and liberal colleagues alike. Sam Alito, a widely respected Newark, N.J.-based federal appeals court judge with 15 years of experience on the bench, was another.
O'Connor's retirement changed the equation, prompting administration lawyers to double back and renew the search for women and minority candidates. But Bush eventually went back to his original list. He thought Roberts's qualifications "jumped off the page," and he quickly settled on him after personally interviewing him in the White House.
Six weeks later, Rehnquist died of thyroid cancer on the weekend before Roberts's hearings were to begin. His death came at a low point of Bush's presidency. Just five days before, Hurricane Katrina had ravaged the Gulf Coast and destroyed New Orleans, killing nearly 2,000 people and displacing thousands more. As the floodwaters rose and state and local officials floundered, neither Bush nor his administration appeared to grasp the scope of the disaster or the degree of human anguish and misery.
That weekend of Rehnquist's death, Bush was in full damage-control mode. He did not hesitate on his decision for the court's new leader. He called Roberts at home less than 12 hours after the news of Rehnquist's death became public. On Monday morning, he introduced him to the nation as his nominee for chief justice.
Now Bush had to find another nominee to replace O'Connor. He emphatically told advisers he would appoint a woman or minority. But there was no ideal candidate. Some were too old, some too liberal, some too unpredictable, and others had too many potential conflicts or problems.
And as the names fell off the short list, Harriet Miers edged her way onto it. The Miers story is almost a perfect storm of missteps and disconnect at every level within the White House.
Bush's decision to nominate her was driven by his determination not to repeat his father's mistake with Souter. His dad didn't know Souter; his advisers promised Souter was conservative, and they had no idea what they were talking about. Bush knew Harriet Miers, and he knew she would not change or disappoint.