As Momentum Grew Against Her, a 'Good Soldier' Acted

By Maura Reynolds

Oct. 28, 2005 12 AM PT

Times Staff Writer

WASHINGTON —

On Wednesday, shortly before midnight, weary White House aides traveled up to Capitol Hill with boxes of documents sought by senators considering the nomination of White House Counsel Harriet E. Miers as an associate justice of the Supreme Court. At 7:30 a.m. Thursday, they were busy conferring with Senate staffers on the logistics of distributing the papers.

They were apparently unaware that 11 hours earlier, Miers had pulled the plug on her own nomination.

About 8:30 p.m. Wednesday, from her office in the West Wing, Miers telephoned President Bush in the White House living quarters, White House officials said. Bush was “deeply disappointed,” said White House Press Secretary Scott McClellan.

McClellan and others in the White House insisted that the decision had been Miers’ alone. But interviews with White House officials, senators and congressional staff indicated her action was the culmination of a long day in which information and opinion moving between the White House and Congress coalesced into a sense that the nomination -- troubled from the start -- could not be rescued.

Most individuals interviewed for this article declined to speak for attribution -- in part out of respect for Miers, saying they did not want to suggest that she had been pushed by the White House or by congressional leaders to take her name out of consideration.

But a source close to the White House said that when Miers learned that her nomination was not being received favorably by senators, she offered to step aside.

“Harriet, being a good soldier, knows the president would never ask her on his own to withdraw,” the source said. “So she saluted and fell on her sword.”

On Wednesday morning, congressional leaders, including Senate Majority Leader Bill Frist (R-Tenn.), went to the White House and met with Bush before he was to sign a gun liability bill. As they talked, Frist raised the issue of Miers’ nomination, telling the president that it was running into difficulty with Republicans.

Shortly thereafter, former Republican National Committee Chairman Ed Gillespie, who was directing the confirmation effort for the White House, headed to Capitol Hill, where he talked with about half a dozen senators. He buttonholed Sen. Jon Kyl (R-Ariz.) -- an influential member of the Senate Judiciary Committee, which was considering Miers’ nomination -- during the recess of a subcommittee hearing.

At a previously scheduled lunch, Gillespie was joined by Sen. John Cornyn (R-Texas), another Judiciary Committee member and Miers’ chief Senate champion, and two advisors to the White House on judicial matters -- Leonard A. Leo, on leave from his position as executive vice president of the Federalist Society, and former Indiana Sen. Dan Coats, the liaison between Miers and the Senate.

When Cornyn was called to the Senate floor for a vote, the others followed, resuming their discussion in Vice President Dick Cheney’s office in the Capitol. An aide to Cornyn said the four men were working to rally support for Miers.

“It wasn’t an ‘end it’ meeting,” said Cornyn spokesman Don Stewart. “It was a ‘make it better’ meeting.”

After the meeting, Coats spent an hour in the Washington office of Concerned Women for America, one of the nation’s largest Christian advocacy organizations. The organization boasts 600,000 members, and had rallied them in the 2000 and 2004 elections on the president’s behalf.

Before he arrived, the group’s senior staff had concluded over lunch that they had more than enough information to formally oppose her nomination.

All they needed was permission from the group’s founder, evangelical author Beverly LaHaye, who was on a plane to Palm Springs.

When LaHaye arrived home, she was told that the group’s staff was recommending to oppose Miers, and she phoned to give her approval.

At the same time, Coats was urging the organization’s general counsel, Jan LaRue, to hold back on any statement until after Miers’ confirmation hearings, scheduled to begin Nov. 7. She was called out of the room to get LaHaye’s message.

“I went back in and told him, and told him I didn’t want him to be blindsided,” LaRue said. “He was obviously disappointed that we weren’t able to wait until the hearing.”

Coats returned to the White House and related the news.

Meanwhile, staff members on both ends of Pennsylvania Avenue also had been conferring.

“We were all feeding information into the White House -- how it was going, where the problems were. I was one of those,” Coats said. But he denied playing a role in Miers’ withdrawal, saying he did not speak with her directly before departing for the day.

“Between the time I left, around 6:30 p.m., and the time she submitted her resignation to the president at 8:30 p.m., I don’t know what happened -- although I realized the hurdle had gotten very high,” he said.

Two factors appeared to lead Miers and her advisors to accept that she was unlikely to retain enough support for confirmation: her lackluster performance in individual meetings with senators and the reluctance of the White House to release documents that could shed light on her approach to legal issues.

In the meetings, she would say little, and what she did say largely failed to impress the senators. A conservative activist described a conversation with a chief of staff for a senator who met with Miers this week: “At the end of the meeting she asked the senator, ‘How did I do?’ He said, ‘You flunked.’ ”

As for the papers, White House officials said neither Miers nor the administration was prepared to release confidential White House documents.

“It’s hard to sustain a battle over executive privilege when you’re the person charged with protecting it the most as counsel to the president,” said Leo, one of the outside advisors.

In the end, the documents provided Miers and her boss a ready explanation for her withdrawal.

“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 Thursday morning, making no mention of other factors.

“Harriet Miers’ decision demonstrates her deep respect for this essential aspect of the constitutional separation of powers -- and confirms my deep respect and admiration for her.”

Times staff writers Edwin Chen, Janet Hook and Peter Wallsten contributed to this report.

(BEGIN TEXT OF INFOBOX)

A rough road

Harriet E. Miers’ nomination to the Supreme Court immediately triggered a backlash.

Oct. 3: Bush nominates White House Counsel Harriet E. Miers to the Supreme Court. Conservative critics immediately question the selection.

Oct. 4: Bush defends Miers, saying “I know her heart.”

Oct. 5: Rush Limbaugh calls Miers’ nomination a “squandered opportunity.”

Oct. 7: The Rev. Louis P. Sheldon of the Traditional Values Coalition says of Miers, “The more I read, the more I like.”

Oct. 9: Sen. Mitch McConnell predicts “rock solid” support for Miers; Pat Buchanan calls her qualifications “utterly nonexistent.”

Oct. 12: Bush indicates that Miers’ religious beliefs were one reason he nominated her; the Senate Judiciary Committee sends Miers a 12-page questionnaire.

Oct. 13: The White House insists that Miers will not withdraw.

Oct. 14: The National Review calls for Miers to withdraw.

Oct. 19: Sens. Arlen Specter and Patrick J. Leahy say Miers’ answers on the questionnaire are “insufficient”and ask her to resubmit some answers.

Oct. 26: Sen. Bill Frist tells the White House in the morning that the nomination is not gaining ground. About 8:30 p.m., Miers informs Bush that she will withdraw.

Oct. 27: The White House announces Miers’ withdrawal.

Sources: Times wire services, Times research

Compiled by Vicki Gallay

(BEGIN TEXT OF INFOBOX)

Other failed nominees

Before Harriet Miers, presidents had made 155 nominations to the court. Twenty-nine of them failed to win Senate confirmation, some more than once. Five of the 29 were nominated again and confirmed. Here are the seven in the 20th century who were nominated but never sat on the court-- and the two who made it to the court the second time around:

Nominee, year, president

Douglas H. Ginsburg, 1987, Reagan

Reagan nominated Ginsburg before it was revealed that Ginsburg had used marijuana as a law student and professor. To quell the Senate uproar, Ginsburg withdrew his nomination.

Robert H. Bork, 1987, Reagan

Senate rejected his nomination, 58-42, because of his conservative views.

G. Harrold Carswell, 1970, Nixon

Senate rejected him, 51-45, largely because of a perceived lack of qualifications.

Clement F. Haynsworth Jr., 1969, Nixon

Senate rejected him, 55-45, on grounds of perceived ethical lapses and hostility toward minorities and the poor.

Homer Thornberry, 1968, Johnson

Johnson withdrew his name after 19 senators said that, with Johnson in the final months of his presidency, they would oppose anyone he nominated.

Abe Fortas, 1968, Johnson

Already a justice, Fortas was nominated for chief justice, but Johnson withdrew his name when Senate voted, 45-43, not to cut off a filibuster against him. Senators objected to his liberal views and to his having been paid for campus lectures while a justice.

John Marshall Harlan II, 1954, Eisenhower

Nomination was blocked in the Judiciary Committee by senators who called him “ultra-liberal” and anti-South. A year later, Harlan was renominated and confirmed.

John J. Parker, 1930, Hoover

Senate rejected him, 41-39, because of his views on race and labor.

Pierce Butler, 1922, Harding

Senators blocked a floor vote on grounds of his alleged pro-corporate bias. Butler was renominated and confirmed the next year.

Sources: Associated Press, Times research; Graphics reporting by Joel Havemann