Democrats’ Colossal Missed Opportunity To Shape The Supreme Court

When President George W. Bush shocked the conservative legal movement by nominating his friend and White House Counsel Harriet Miers to the Supreme Court, Ralph Neas celebrated. Footage from his self-produced documentary shows the liberal troubadour beaming with excitement that morning in 2005 as he accepted congratulatory phone calls.

Neas, then president of People for the American Way, had been the progressive point man for judicial battles going back to Robert Bork’s failed Supreme Court nomination, 18 years earlier. And Neas had just lost a big one, with the confirmation of John G. Roberts Jr. as chief justice. But now, with Bush’s nomination of Miers, Neas instinctively understood that the president had caved: In the great proxy war over abortion, affirmative action and gun control, the center had held.

No one could claim to know exactly what Miers believed, but the fact that she was emphatically not a creature of the conservative legal movement — not a member of the Federalist Society, not a name on the list of acceptable nominees drafted by former Attorney General Ed Meese and his allies — made this nomination a breakthrough for the left. The fact that it came at a moment when Republicans controlled the White House and Senate made victory all the sweeter.

Neas’ enthusiasm was initially matched by that of other Bush critics, such as the Senate Democratic leader Harry Reid (D-Nev.), who told people that he had been the first to suggest Miers as Supreme Court material to Bush. While Bush’s top adviser Karl Rove insists Bush was already mulling a Miers nomination when Reid chimed in, Bush clearly felt more confident in making the move with the expectation that Reid would deliver Democratic votes for Miers. This wasn’t a far-fetched notion: Roberts, with far more of a conservative pedigree than Miers, had just won confirmation with the support of half the Democratic caucus.

The seeming liberal triumph of the Miers nomination, of course, would give way to a conservative backlash. Almost immediately, conservative judicial activists rose up against Miers, citing her lack of experience in constitutional law and sparking a rebellion that eventually forced Bush to withdraw her nomination.

The alacrity with which conservatives turned on Bush, a president they had lionized after 9/11 as the great leader of his time, shocked people on both sides of the judicial divide. It was a powerful signal that the fight over the Supreme Court transcended party loyalty. This was a long twilight struggle, and one side — the right — understood the stakes well enough to know they had to gash Bush to preserve their agenda. The other side, it turned out, was slow to grasp the implications until it was too late.

Reid’s initial praise of Miers was quickly muted. Liberal stalwarts including Sen. Ted Kennedy declared that they would wait until Miers’ confirmation hearings to pass judgment. This was a much milder response that the gales of fury that Kennedy usually inflicted on Republican nominees, but it inadvertently fed into the conservative critique of Miers as unknown and unqualified: a non-entity.

As the conservative attacks on Miers mounted, Reid and his fellow Democrats seemed only too happy to stand on the sidelines of the Republican-on-Republican scrum, while letting the last chance to rescue Miers slip away.

Significantly, Bush made it clear that he didn’t give up on Miers simply because of what he called “the firestorm of criticism we received from our supporters.” It was the failure of Democrats to lend their backing to the besieged Miers.

“When the left started criticizing Harriet, too, I knew the nomination was doomed,” Bush wrote in his memoir, Decision Points.

Today, the notion of Miers as a misguided, unfit choice for the Supreme Court has taken root, partly because of her lack of any defenders on the left or right outside of Bush’s inner circle. The nomination seems to have passed as a blip, a footnote to much more consequential judicial battles before and after.

In fact, the Miers debacle was not only a colossal missed opportunity for the Democrats, but a major turning point in the judicial wars. The failure to build consensus around a centrist nominee, based on her character and life experiences rather than ideology, effectively ended any hope of compromise over the Supreme Court. Every nominee confirmed since then has been, for better or worse, a figure with a long, ingrained record of decision-making that reinforced the predilections of the party in power. This was the recipe for bitterness and conflict that followed.

Miers’ replacement was Third Circuit Judge Samuel A. Alito Jr., who in 15 years on the bench had built an unwavering conservative record. He was an enthusiastic Federalist Society member and former Meese aide, showered with endorsements on the right.

One measure of the extent of the conservative victory in his nomination became visible in 2022, when he authored the majority opinion in Dobbs v. Jackson Women’s Health Organization, ending the constitutional right to an abortion which had lasted for 49 years. This was the great white whale of the conservative legal movement, the event it had organized around and prayed for. It was Alito’s words that made it a reality.

Despite Roberts’ concurrence in the result — upholding a Mississippi law that allowed abortions up until the start of the second trimester — the vote was only 5-4 in favor of overruling Roe v. Wade. Would having Miers on the court instead of Alito have made the difference? No one can say for certain. But the implications are vast, and powerful enough to fuel decades of potential liberal regrets.

The seat to which Miers was nominated belonged to Sandra Day O’Connor. In the years since she became the first woman on the Supreme Court, in 1981, the Ronald Reagan appointee had evolved into the court’s swing vote.

Like most centrists, O’Connor attracted a little friction on both sides. Conservatives often expressed frustration over her preference for elaborate balancing tests to serve competing interests, including on abortion rights; they believed she functioned more as a legislator than a judge. Liberals sometimes had similar frustrations, but respected her desire for a fair outcome. Her background in state politics, having served as majority leader in the Arizona state Senate, seemed to have made her more attentive to results than to process.

When she announced her retirement in 2005, desiring to spend more time with her husband who was struggling with Alzheimer’s Disease, she expressed hope that a woman would replace her on the bench.

Court watchers understood the stakes immediately.

“Justice O’Connor has been the most important figure on the court in recent years,” Neas told The New York Times. “Her replacement will have a monumental impact on the lives and freedoms of Americans for decades to come.”

He called for bipartisan consultation, followed by the selection of a consensus choice in the mold of O’Connor. Conservatives had other ideas, having already given the Bush administration a list of acceptable nominees.

Building a robust pipeline of highly qualified and proven conservatives, from law school to clerkships to the Justice Department to lower-court judgeships, was an explicit aim of the conservative legal movement. In the decade and a half since the last Republican nominee, Clarence Thomas, had joined the Supreme Court, Meese and others associated with the Federalist Society, including Leonard Leo, had honed the list to roughly five acceptable candidates: Roberts, Alito, Michael McConnell, Michael Luttig and Edith Jones, all circuit-court judges.

Bush’s team had been following and vetting the candidates since the start of the administration in 2001. According to oral-history tapes, Attorney General Alberto Gonzales asked Bush if he wanted to provoke a fight over abortion rights. Bush did not. That ruled out candidates who had been outspoken in their condemnations of Roe v. Wade, including Jones, the only woman on the list.

Always trusting of his gut, Bush wanted to spend personal time with the leading candidates, including Roberts and Alito. He and a rather stiff Alito did not jibe, but he found himself immediately impressed with the genial and outgoing Roberts.

Roberts’ charm was on full display when Bush announced his selection as O’Connor’s replacement. The nominee quickly began winning over Democrats with his mixture of boyish friendliness and Ivy League gravitas. Neas, however, was not gulled. He believed Roberts to be a wolf in sheep’s clothing, destined to move the court dramatically to the right.

Thus began a tense period on the left, as Democrats including the ranking member of the Judiciary Committee, Sen. Pat Leahy, gradually began to be won over by Roberts, to Neas’ frustration.

The situation altered a bit when Chief Justice William Rehnquist succumbed to cancer, and Bush decided to nominate Roberts for the chief’s position. The replacement of one conservative, Rehnquist, with another, Roberts, didn’t shift the balance of the court, but it raised the stakes for the reopened O’Connor seat.

One person who insisted the new nominee should be a woman came from a surprising quarter: Laura Bush. The First Lady’s support for abortion rights was well known, and the fact that she and her husband could comfortably disagree on such an issue actually worked to Bush’s advantage, moderating his image. And the president deeply trusted her instincts.

“This was a rare occasion when Laura’s advice spilled out into the public, but far from the only time I relied on her thoughtful counsel,” Bush later wrote. “Laura had an instinctive feel for the pulse of the country.”

And both Bushes were close friends with Miers, who had loyally served them in Austin and Washington.

At 60, Harriet Ellan Miers was a pioneer. Growing up in Dallas in the pre-feminist days, she defied expectations and worked her way through law school at Southern Methodist University, Laura Bush’s alma mater. She was the first woman partner at a major Dallas law firm; the first woman managing partner of a top Dallas firm; and the first woman to serve as president of the Texas Bar Association.

Along the way she was elected to the Dallas City Council, where she explained to an interviewer that she chose not to join the Federalist Society, believing “it’s better not to be involved in organizations that seem to color your view one way or the other for people who are examining you.”

During Bush’s governorship, Miers was Bush’s choice to clean up the scandal-plagued Texas Lottery Commission. When he became president in 2001, he brought her into the White House in several roles culminating in White House counsel.

After secret discussions within the administration, George and Laura Bush gave Miers the news at a private White House dinner that she would be his choice to replace O’Connor. The logic seemed clear enough to the Bushes: Like O’Connor, she was not a creature of Washington or East Coast legal circles; she had established a foothold in electoral politics; and she could be counted on to take a common-sense approach to important court decisions.

She also had some of the earmarks of what Neas had sought when speaking of a bipartisan, consensus choice. And, of course, she was a woman.

Despite the quick actions of Karl Rove and other Bush aides to smooth the waters with the right, two important conservative voices rang out immediately in opposition.

Randy Barnett, a Boston University law professor and respected Federalist Society figure, took to the opinion pages of The Wall Street Journal to cast Miers as a Bush crony elevated above her station. The famed Washington Post columnist George Will was even more withering. If one hundred constitutional experts were asked “to list 100 individuals who have given evidence of the reflectiveness and excellence requisite in a justice,” Will wrote, “Miers’ name probably would not have appeared in any of the 10,000 places on those lists.”

In their memoirs and oral histories, Bush and members of his team decried that line of thought as elitist and unfair.

“How could I name someone who had not run in elite legal circles?” Bush wrote, summarizing the conservative blowback. “Harriet had not gone to an Ivy League law school.”

Rove tried to build support for Miers by stressing her evangelical faith, and having two close friends of hers, including Texas state Supreme Court Justice Nathan Hecht, the man who introduced her to the church, attest to her religious values. Some of the religious leaders seemed mollified, only to have a new kerfuffle arise when Focus on the Family leader James C. Dobson hinted on his radio show that the friends had promised that Miers would vote against Roe.

While Rove and Hecht denied anything of the sort, Democrats including Reid, Chuck Schumer (D-N.Y.), and Dick Durbin (D-Ill.) quickly began demanding an investigation, in a reflexive move that had them joining the ranks of Miers’ skeptics.

Even Robert Bork himself, the patron saint of failed nominations, adjudged the Miers choice to be “a disaster.”

The Democrats were caught between their sense of Miers as a palatable alternative to other, more nakedly conservative nominees and their desire to play the role of Bush’s antagonists.

Reid seemed to set the tone at the outset. At first, he appeared open to giving Miers a hand. He had found her competent and approachable in her White House job, and responded to the initial surge of conservative criticism by calling her lack of judicial experience “a plus, not a minus.” But he had his spokesman, Jim Manley, tell the media that Reid’s praise of Miers did not preclude his opposition or even a filibuster against her.

For his part, even Manley found it difficult to decipher his boss’ intentions: “I remember at one point, I had to pull him aside and say, ‘What’s going on here?’” Manley recalled in an interview. But it was characteristic of Reid to set things in motion and then wait for more data points to recalibrate the political equation. “He had a theory of politics to throw some things up in the air and see how they land,” said Manley. “Reid threw it out there and then he took a step back and watched the Republicans publicly and privately attack the woman.”

For a tough combatant like Reid, who built a robust Democratic machine through labor unions in politically divided Nevada, watching the GOP descend into disarray brought satisfaction. But it did nothing to help Miers, let alone to advance the cause of a balanced and moderate Supreme Court.

When Sen. Arlen Specter, the Republican chairman of the Senate Judiciary Committee, criticized Miers by declaring her answers to the senators’ pre-confirmation questionnaire to be inadequate, and then condescended to give her more time to address follow-up questions, he was seconded by Leahy, the Democrats’ ranking member.

But when Miers, feeling heat on all sides, withdrew, Reid and Leahy sounded different notes.

Reid complained that “the radical right wing of the Republican Party drove this woman’s nomination right out of town.”

Leahy responded to Bush’s decision to replace Miers with Alito by saying, “Instead of uniting the country through his choice, the president has chosen to reward one faction of his party, at the risk of dividing the country.”

Miers, who is still practicing law in her Dallas firm at 80, routinely declines to discuss those painful days of 2005. Democrats aren’t much inclined to do so, either. Outside of Bush’s circle, however, conservatives seem resolute in believing that Miers was flat-out unqualified, and that by curbing Bush’s misguided instincts they helped the country to dodge a bullet.

But by historical standards, there is no reason to believe that Miers was unqualified for the court.

Consider the charge that Bush was showing favoritism to a member of his administration. If so, he was in a proud line of presidents who tapped their top deputies for the court. William McKinley, Theodore Roosevelt, Woodrow Wilson, Calvin Coolidge, Franklin D. Roosevelt and Harry Truman all elevated their attorneys general to the Supreme Court, along with a fair number of personal friends and allies.

The corresponding notion that a justice must be a great constitutional mind, having developed a theory of interpretation through long judicial experience, would have ruled out most of the justices who ever served on the court. In the late 19th century, choosing nominees whose main experience was in corporate law was closer to the norm than the exception. And nominating justices with experience in politics, far from being corrupting, was common practice throughout most of U.S. history.

In fact, many scholars believe that a successful court requires a mix of perspectives. Experienced jurists like Oliver Wendell Holmes Jr. and Benjamin Cardozo earned great respect on the Supreme Court, but so too did politicians like Earl Warren and practitioners like Robert Jackson.

Among the nation’s 17 chief justices were a former president, a former presidential nominee, a former governor of California, a former Ohio senator and a former U.S. representative from Kentucky.

It’s today’s court that’s the historic anomaly. Among the nine current members, all but one member served as circuit-court judges; all but one went to law school at Harvard or Yale; and all seemingly set their sights on the court from their early years, avoiding risky statements or entanglements that might have complicated their confirmations.

The New York Times editorial page captured the arc of history in its editorial after Bush tapped Miers: “Many of the best justices have taken odd routes to the court,” the paper opined in an unsigned editorial. “Ms. Miers could prove to be a pragmatic, common-sense justice who ends up making this court the Miers Court, the way Justice O’Connor made the last one the O’Connor Court.”

It never happened. And when the Supreme Court handed down the Dobbs decision in 2022, Hecht, the Texas Supreme Court justice who was Miers’ friend, couldn’t help but wonder what Harriet would have done. Would she have shifted the decision in the other direction? Hecht couldn’t say for sure, but he thought the moderate path sketched out by Roberts was something Miers might have found appealing, and she would have given serious consideration to the weight of settled precedent.

“Even today, people will argue, oh, well, I thought Roe was wrongly decided at the time, just thought that Justice [Harry] Blackmun got it wrong,” said Hecht. “But would I upset the country by changing it today? I don’t know.”

America will never know.