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Bush Withdraws Miers as Nominee

Growing Conservative Revolt Topples President's High Court Choice

October 28, 2005|Warren Vieth and Edwin Chen | Times Staff Writers

WASHINGTON — President Bush on Thursday surrendered to an embarrassingly public insurrection by conservative activists and abandoned the Supreme Court nomination of White House Counsel Harriet E. Miers.

The president and his aides tried to put the best face possible on the situation, saying Bush had "reluctantly" accepted Miers' decision to withdraw her name from consideration because of a likely clash over Senate access to sensitive White House records.

"It is clear that senators would not be satisfied until they gained access to internal documents concerning advice provided during her tenure at the White House -- disclosures that would undermine a president's ability to receive candid counsel," Bush said in a statement.

But several sources close to the White House said the decision to withdraw the nomination was made after it became clear that resistance was stiffening among conservatives on Capitol Hill.

For example, Senate Majority Leader Bill Frist (R-Tenn.) had indicated that Miers was not gaining ground. And, with opposition from right-wing organizations continuing to grow, Republican senators were dismayed at the prospect of being forced to choose between loyalty to their president and loyalty to the conservative groups they counted on for support.

Tacitly acknowledging that the president did not want a confrontation, White House officials indicated that Bush -- while extremely unhappy with the setback -- would probably seek a Supreme Court nominee whose legal credentials and personal philosophy would command support from conservatives who found Miers wanting.

It was not immediately clear where Bush might turn for a new nominee. Among those on Bush's previous shortlist who are considered likely to pass muster with conservatives are U.S. appeals court judges J. Michael Luttig and Karen Williams of the 4th Circuit, based in Richmond, Va.; Priscilla R. Owen, Edith Brown Clement and Edith H. Jones of the 5th Circuit, in New Orleans; Michael W. McConnell of the 10th Circuit, in Denver; Samuel A. Alito Jr. of the 3rd Circuit, in Philadelphia; and Alice Batchelder of the 6th Circuit, in Cincinnati. Another possibility is Larry D. Thompson, a former deputy attorney general and now general counsel at PepsiCo Inc.

A desire to appease conservatives could jeopardize the prospects of another Bush favorite, Atty. Gen. Alberto R. Gonzales, who served as White House counsel before heading the Justice Department. Some activists have characterized Gonzales as too centrist on key issues.

Republican strategists said debate was unresolved in the White House over how to move forward. One group favored announcing a new candidate as quickly as possible to offset the political damage from the CIA leak investigation, sources said, while another faction was advocating a more deliberative process to ensure the next nominee was fully qualified and politically viable.

In seeking a new nominee, the White House is likely to be mindful that Miers was judged unacceptable by at least two elements in Bush's conservative base.

Some wanted a nominee who could be an eloquent and erudite spokesperson for their judicial philosophy. They decried what they saw as Miers' meager credentials in judicial theory and her lack of experience outside corporate law.

Social conservatives, meanwhile, complained of uncertainty about her positions on issues such as abortion and affirmative action.

Instead of making the most of his opportunity, critics said, Bush opted to reward a personal friend and loyal ally.

Miers' problems were exacerbated by what were described as unimpressive performances in mock confirmation hearings, in written responses to lawmakers' questions and in meetings with individual senators, according to knowledgeable sources who requested anonymity when discussing the issue.

That is, in addition to facing formidable opposition, Miers did not appear to be shaping up as a strong advocate of her own cause.

Miers' perceived weaknesses stood in sharp contrast with the strengths of Bush's previous nominee, John G. Roberts Jr., who was easily confirmed to succeed the late Chief Justice William H. Rehnquist. A seasoned and highly articulate Supreme Court litigator, Roberts had mastered constitutional debate. Republicans and Democrats said he gave a model performance during Senate confirmation hearings.

Miers was to have succeeded retiring Justice Sandra Day O'Connor, often the court's swing vote on controversial issues such as religion, abortion and affirmative action.

The withdrawal is the latest in a series of setbacks for Bush that include a perceived lack of progress in Iraq, a bungled government response to Hurricane Katrina and weak support for key initiatives such as restructuring Social Security.

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