The Nine - Jeffrey Toobin [157]
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 he had a stroke when she was a freshman at Southern Methodist University, and she won a scholarship and worked to make it through SMU and its law school. When O’Connor came out of Stanford Law in 1952, she received no better offer than a secretary’s job at a law firm. When Miers graduated in 1970, she also found a frosty