Tuesday, October 18, 2005

Why did Bush pick Miers?

Why did Bush pick Miers, who seems the opposite of Roberts in many ways? I have a theory.

Fact: On all of his judicial picks, Bush has been solidly conservative. He's even been willing to use the recess appointment power to put people like 11th Circuit judge William Pryor on the bench.

Fact: When O'Connor announced her retirement, Bush wanted to move the Court to the right, at least somewhat. But at the same time, he didn't expect to have the votes in the Senate to win a filibuster battle against the Democrats (who will stop at nothing to keep the Court from moving to the right). Thus, Bush picked Roberts to replace O'Connor, knowing that Roberts didn't have the extensive paper trail that virtually all the other potential nominees had.

Fact: Rehnquist suddenly died. No one expected this to happen (so I've been told by a good friend who was involved in the confirmation process). The White House had been planning all along to elevate Roberts to Chief if the opportunity arose, so it announced that Roberts was now going to replace Rehnquist.

But now what to do? Bush still wanted to replace O'Connor with a conservative. But he knew that the Democrats were even more resolute about blocking any nominee with a conservative paper trail, and he knew that there weren't enough Republican votes to overcome a filibuster or to change the rules. Plus, Bush had less political capital in the wake of Katrina to force a nominee through an unwilling Senate.

Thus, Bush did the only thing he could in that situation: He picked a nominee (1) who has no paper trail to speak of, (2) who is reasonably qualified (in historical terms) for the job, and (3) whom he knows to be conservative from many years of personal friendship.1

My hunch -- and this is all just speculation -- is that things would have gone very differently if Rehnquist hadn't suddenly died. We'd have seen Roberts replace O'Connor; and then at some later date, Rehnquist would have retired. At that point, Bush probably wouldn't have felt as constrained to pick another nominee with no paper trail. The White House message could have been, "We're just replacing Rehnquist, and he was one of the original dissenters in Roe, for heaven's sake. What do you expect but another conservative to replace him?," etc., etc.

1Actually, another lawyer who fits those characteristics (and who, in my view, is probably better qualified than Miers) is Baker Botts partner Bob Jordan, who has at times served as Bush's personal attorney and who was the ambassador to Saudi Arabia from 2001-2003. I knew and worked with Bob when I was a summer associate at Baker Botts in 1999, and he wrote a letter of recommendation for my judicial clerkship applications.


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