Analysis: Miers Withdrawal Was Damage Control

Oct. 27, 2005 — -- The withdrawal by Supreme Court nominee Harriet Miers was an act of damage control by the White House.

There was a rebellion on the right that appeared to be threatening the president's ability to govern across a broader range of issues. (Indeed, one of the the most stunning things about the failure of the Miers nomination is that it occurred largely because of opposition from within the president's own party, rather than opposition from Democrats.)

There were mounting doubts about the consistency of Miers' judicial philosophy deriving from her various speeches and articles that undoubtedly had not been located and reviewed prior to her nomination.

There were also increasing indications that side issues from Miers' past -- issues involving the Texas Lottery Commission, land sales, lawsuits against her firm and her service on various corporate boards -- might play a role during Senate hearings and complicate consideration of her nomination.

To compound the problem, Miers' courtesy calls were failing to generate commitments of support from senators on either side of the aisle, and the missteps involving her Senate questionnaire and her failure to pay bar dues in a timely way were undercutting one of the central rationales for her nomination: her care, thoroughness and meticulousness as a lawyer.

Act of Loyalty?

Given all of this, Miers and the president appear to have concluded that it would be better for both of them to move on. Although it was too early to say that confirmation was impossible, it was looking increasingly difficult, and the White House obviously calculated that -- even if it could be achieved -- it would probably come at too high a cost, damaging both Miers and the president in the process.

Miers has always been exceptionally loyal to President Bush, and I am sure she came to the conclusion that her nomination was doing him injury and, at least in part for that reason, withdrew. It was, in a sense, yet another act of loyalty by Miers.

The explanation given for the withdrawal -- that confirmation might require disclosures of executive branch legal activities that, according to Bush, "would undermine a president's ability to receive candid counsel" -- was both real and not-real at the same time.

It was real in the sense that the president is genuinely committed to strengthening the office of the president and to ensuring that the institutional prerogatives of the presidency are protected. Those principles and prerogatives are more important to him than any individual nomination, even of a close friend.

The explanation was not real in the sense that the fight over White House documents only became as salient as it did because of other deficiencies in the nomination. I doubt that it would have derailed an Alberto Gonzales nomination, for example, even though he held the same White House counsel job she did, and for longer.

The issue assumed the role it did in this nomination only because there was so little evidence of any other kind from which senators of either party could attempt to divine her philosophy.

Excellence Matters

So what's next?

The Miers nomination occurred because of constraints the president imposed on himself: He wanted (1) a conservative, (2) a woman, and (3) a nominee who would not start a fight in the Senate. The president may well have to compromise on at least one of these criteria to find someone who now will answer his imperative need -- to repeat the triumphant experience of the Roberts nomination.

The enduring lesson of the two nominations, taken together, is that quality and excellence matter. They matter a lot, and far more than most people suppose.

There are a very small handful of the nation's finest legal minds who are indisputably part of the magic circle of lawyers, professors and judges that everyone would agree merit appointment to the Supreme Court. If you draw from that circle, you can overcome a lot of opposition. If you draw from outside it, the burden of persuasion is much higher, and confirmation is much less certain.

The president probably needs to return to that circle to find someone whose qualifications are beyond question.

Many people in that circle -- people who have solidly conservative judicial philosophies and have distinguished themselves over long careers engaged with federal constitutional issues -- were probably eliminated from consideration by the "consultation" process in the Senate.

It's easy for senators to make threats and issue warnings during that process and hard for the White House to figure out which ones are real and need to be taken seriously. For that reason, the first step in revisiting this appointment may be for the president to declare his independence (if only privately) from the vicissitudes of senatorial advice.

With 55 Republican senators, an outstanding conservative nominee will likely be confirmed, so the challenge will be for the White House to keep its eye on the ball and not allow itself to become distracted by considerations extraneous to the merits of the nominee.

Leading contenders would include Priscilla Owen, J. Harvie Wilkinson III, Karen Williams, J. Michael Luttig, Mike McConnell, and Samuel Alito.

Attorney General Gonzales still has to be taken quite seriously as a candidate, but the storyline of the Miers nomination would make that a far trickier nomination now than it would have been a few weeks ago.

Brad Berenson was associate White House counsel during George W. Bush's first term and is now an ABC News consultant.