The Nine [163]
For the most part, Democrats simply chortled, relishing the intramural quarrel on the other side of the aisle. They made sure that reporters saw the fawning notes that Miers had written to Bush during his years as governor. “Hopefully, Jenna and Barbara recognize that their parents are ‘cool’—as do the rest of us,” she wrote in one. “Keep up the great work. Texas is blessed!” And “You are the best governor ever—deserving of great respect!” And “You and Laura are the greatest!”
Democratic senators raised questions about cronyism, which were especially resonant in the aftermath of Katrina. But notably, not a single Democratic senator announced his or her intention to vote against Miers. As the right-wing attacks on her grew more frenzied, some Democrats began to think that perhaps Miers really was a secret moderate and thus the best they could hope for as a Bush nominee.
Specter set the start of Miers’s hearings for November 7, and as the date grew closer the chairman of the Judiciary Committee made it clear that he was unimpressed with Miers. Unlike most of his fellow Republicans, the dyspeptic Specter cared more about her qualifications than about her ideology. He noted publicly that she would need a “crash course” on constitutional law, which was not something that anyone could have said about John Roberts. On October 19, Specter and Patrick Leahy, the ranking Democrat on the committee, sent Miers a nasty letter complaining about several of her answers on her questionnaire. They wanted more detail on “the nature and objectives” of all organizations to which she had belonged and “any and all communications, including those about which there have been recent press reports, in which friends and supporters of yours, among others, were said to have been asked by the White House to assure certain individuals of your views.” In other words, they wanted to know about Hecht’s promises that she would vote to overrule Roe. The senators gave Miers until October 26 to complete her answers.
Through the second and into the third week of October, Miers continued to meet privately with senators and to prepare for her public testimony. Neither the meetings nor the rehearsals went especially well. Miers lacked Roberts’s charm as well as his deep knowledge of constitutional law—which allowed him to summarize the state of the law at length without letting on much about his own views—and she did little in person to help her cause.
Still, despite the predictions of her increasingly desperate enemies, Miers likely would have handled the hearings with relative ease. Congressional hearings almost always reflect better on the witness than on the senators, who generally come across (with some reason) as pompous and uninformed. Hostile cross-examination from conservatives would almost certainly have evoked sympathy for the nominee. Miers’s personal story of triumph over adversity, like Thomas’s fourteen years earlier, would have counted for a great deal with the public. The forty-four Democrats in the Senate, figuring that Miers was the best they could do (and already sixty years old), would probably have voted overwhelmingly to confirm. Even perfunctory lobbying by Bush would have produced a substantial number of Republican votes. By mid-October, Miers’s confirmation looked likely—if she could get to a vote.
That was why her enemies in the conservative movement were determined to prevent that vote from ever taking place. On October 21, the syndicated columnist Charles Krauthammer, a conservative opposed to Miers, wrote, “We need an exit strategy from this debacle. I have it.” Senators should ask for “privileged documents from Miers’s White House tenure,” and the president should refuse to turn them over. The request could create a conflict “of simple constitutional prerogatives: The Senate cannot confirm her unless it has this information. And the White House cannot allow release of this information lest it jeopardize executive privilege. Hence the perfectly honorable way to solve the conundrum: Miers