The Nine [157]
Shortly after O’Connor announced her resignation in July of 2005, Andrew Card, Bush’s chief of staff, had asked Miers whether she wanted to be considered for the vacancy, and she declined. As a result, Miers administered the White House operation for selecting the next justice. She was well suited for the job, because it called for meticulousness and discretion and thus resembled her earlier work in the White House, as staff secretary and then deputy chief of staff. In her new post as White House counsel, Miers had run the search, supervising her associate counsels’ updates of the candidate memos and then bringing in the finalists for interviews. She also consulted with members of the Senate, leading Harry Reid to become a fan. Once Bush chose Roberts, Miers coordinated the White House end of the confirmation process—juggling the requests for information from senators, managing the preparation of the mammoth background questionnaire that Supreme Court nominees must complete, and arranging for the “murder boards” where Roberts trained for his testimony before the Judiciary Committee. This complex process went as smoothly as Roberts’s own performance, so the easy confirmation of the new chief justice cast a favorable glow on Miers as well as Roberts himself.
Bush did not focus as much on the second vacancy as he did on the first. He spent almost the whole month of August 2005 on vacation at his ranch in Crawford, Texas. When he returned to Washington, he immediately became preoccupied with trying to address the humanitarian and political aftermath of Hurricane Katrina. By mid-September, the Roberts process was wrapping up, and Bush still had no nominee for the O’Connor seat—and hadn’t thought much about it, either.
Miers had returned to her role of running the search. Prodded by the unusual public nudge from his wife, Bush said he wanted to nominate a woman for the O’Connor seat, so that was how Miers focused her efforts. During one two-and-a-half-hour session with representatives of conservative activist groups, Miers went through a list of all female Republican appointees to the federal courts of appeals, weighing their suitability for a nomination. Some were appealing but intellectually undistinguished (Edith Brown Clement), others were too politically inflammatory to get through the Senate (Janice Rogers Brown and Edith Jones), others were dismissed as too moderate (Consuelo M. Callahan of the Ninth Circuit). Because women judges, like women generally, tend to be more liberal than their male counterparts—and because Democrats like Clinton appointed more women to the bench than Republicans—the female Republican pool was not large. No candidate stood out, either to Miers or to her superiors.
Still, Miers’s competence in handling this process impressed Bush, who had a history of turning the leader of a search into its target. (In 2000, of course, Dick Cheney had led the vice presidential selection process that led to his own designation.) Unhappy with the available options, Bush mentioned Miers as a candidate to Card. He, in turn, told Bill Kelley, Miers’s deputy, to look into the possibility. Miers learned of Card’s interest, and this time she didn’t rule out a nomination, though neither she nor Kelley took it very seriously. Kelley set to work on a memo about his boss’s qualifications.
O’Connor and Miers were born fifteen years apart—in 1930 and 1945, respectively—and they both grew up in the Southwest at a time when women lawyers were considered an exotic and often unwelcome species. But the differences between them reflected both the swiftly changing fortunes of women in the post–World War II era and more fundamental contrasts in character. O’Connor grew up on a ranch, and Miers was raised in a big city, Dallas. O’Connor was wealthy, Miers wasn’t. Her father ran a struggling real estate business before