The Nine [164]
The idea was breathtakingly cynical—a more or less open fraud—but it served the conservatives’ purpose. Republicans had been complaining for years that Democratic filibusters were denying Bush’s judicial nominees “up-or-down votes” the president even used that phrase in his State of the Union address in 2005. Yet the exact same people who were complaining about the denial of votes to Bush’s other judicial nominees were mobilizing to deny just such a vote to the White House counsel, who helped select most of the other would-be judges. But to the conservatives, nothing mattered—not consistency, not fairness, not the fate of an otherwise allied figure—except getting guaranteed control of the Supreme Court. The “Krauthammer solution,” as it became known, was put into effect.
One person who could have stopped the railroading of the nominee was Miers herself. In 1987, Robert Bork refused to withdraw even when it became clear that he would lose in the Senate, and the recorded vote went forward, a 58–42 defeat. In this case, it was by no means clear that Miers would lose. But at a fundamental level, Miers always acted more as Bush’s attorney than as an independent actor. A lawyer always puts a client’s interests ahead of his or her own, and Bush’s priority was pleasing his most conservative supporters, particularly when it came to the Supreme Court. Miers would not force Bush to disappoint his base, even at great personal cost. She would withdraw as a nominee.
At 8:30 p.m. on Wednesday, October 26, twenty-three days after Miers was nominated, she called Bush to tell him that she would drop out. For the moment, the decision remained their secret, and later that evening the White House even submitted the answers to the senators’ follow-up questions. But the next morning, they executed the Krauthammer solution. Miers wrote a letter to Bush saying that senators were planning on asking about her service in the White House. “I have steadfastly maintained that the independence of the Executive Branch be preserved…. Protection of the prerogatives of the Executive Branch and continued pursuit of my confirmation are in tension. I have decided that seeking my confirmation should yield.” In a statement issued the same day, Bush “reluctantly accepted” Miers’s withdrawal.
The next day, Friday, October 28, Lewis “Scooter” Libby, the vice president’s chief of staff, was indicted in the CIA leak investigation for perjury and obstruction of justice, ending perhaps the worst week of the Bush presidency. The Miers debacle and the Libby charges took place while the Gulf Coast remained in extremis and the Iraq disaster continued. Facing similar crises, other presidents had found refuge in moderation, in bipartisanship, in gestures of conciliation to political adversaries.
But George W. Bush did not conduct that kind of presidency. Over the weekend, Harriet Miers, ever loyal even in the face of public humiliation, accompanied the president to Camp David to help choose a replacement for herself. Their goal remained unchanged—to select the most conservative possible Supreme Court justice, one who would be welcomed by James Dobson, the Arlington Group, Ed Meese, Jay Sekulow, Manny Miranda, and the rest of the president’s base. By 8:01 on Monday morning, they had their man.
23
DINNER AT THE JUST DESSERTS CAFÉ
The weekend at Camp David was mainly for relaxation, at least for the president. Bush had already made up his mind. Notwithstanding the distraction of the Libby indictment, both Bush and Andrew Card found time to call Judge Samuel A. Alito Jr. in his chambers in Newark. Again the conversations were cursory, but they reflected Bush’s more or less instantaneous decision. He had liked Alito more than Luttig (the only other candidate considered), so Alito it would be. As for Laura Bush’s preference for a woman, the Miers fiasco convinced the president that choosing a reliable conservative mattered more.
In a curious way, the nomination of Alito amounted to Miers