Harriet Miers, President George W. Bush’s second pick for the Supreme Court, was already withering under great skepticism and criticism from the far right when an Oct. 26 Washington Post report sparked further shock waves.
The front-page story reported on a 1993 speech Miers delivered to a group called the Executive Women of Dallas. As The Post put it, “Miers appeared to offer a libertarian view of several topics in which the law and religious beliefs were colliding in court.” She endorsed “self-determination” on issues such as abortion and school prayer.
Remarked Miers during the speech, “The ongoing debate continues surrounding the attempt to once again criminalize abortions or to once and for all guarantee the freedom of the individual to decide for herself whether she will have an abortion.”
Miers went on to assert “we gave up...legislating religion or morality.” She added, “When science cannot determine the facts and decisions vary based upon religious belief, then government should not act.”
This was heresy to the Religious Right, and its leaders – many of whom had been wobbly on Miers from the beginning – promptly went on the attack.
“This is very disturbing,” wrote Family Research Council President Tony Perkins on the group’s Web site. “Miss Miers’ words are a close paraphrase of the infamous Roe v. Wade decision. Her use of terms like criminalize abortion to characterize the pro-life position and guarantee freedom to describe the pro-choice position should have sounded alarms in the White House during the vetting process.”
Continued Perkins, “When we defend the right to life, we hearken back to the Declaration of Independence, not to some strictly sectarian view. Science has long ago answered the question of when human life begins. The constitutional and legal question is whether we are going to defend innocent human life from lethal assault. This speech raises very troubling questions about Miss Miers’ views of constitutional matters.”
Jerry Falwell acolyte Mat Staver of the Liberty Counsel told The Post, “This is going to be very disturbing to conservatives because I think it shows that she is a judicial activist. This concept of self-determination could clearly be read in support for things like abortion or same-sex marriage, and it’s a philosophy that cuts a judge loose from the Constitution.”
Concerned Women for America (CWA), a Religious Right group that frequently attacks church-state separation, demanded that Miers withdraw. “We find several aspects troubling, particularly her views on abortion and a woman’s ‘self-determination,’ quotas, feminism and the role of judges as social activists,” said Jan LaRue, CWA’s chief counsel, in the conservative Washington Times newspaper. “We do not believe that our concerns will be satisfied during her hearing.”
On Oct. 27, Miers removed her name from consideration for the high court. Her withdrawal brought to an end a strange saga that saw a rare split among Bush’s far-right base. When Bush announced her nomination Oct. 3, two high-profile Religious Right figures, James C. Dobson of Focus on the Family and TV preacher Pat Robertson, were enthusiastic right off the bat. Reaction from other Religious Right leaders and members of the secular right, was much more muted.
Bush apparently thought he could push Miers through by nailing down the most powerful Religious Right groups. Thus, he reached out early to Dobson, Robertson and Richard Land of the Southern Baptist Convention (SBC).
Just before the announcement, Dobson got a personal phone call from Karl Rove, Bush’s top political adviser, who assured the powerful religious broadcaster that Miers would prove to be a justice the Religious Right would be mighty pleased with.
According to Dobson, Rove said, “Harriet Miers is an evangelical Christian, that she is from a very conservative church, which is almost universally pro-life, that she had taken on the American Bar Association on the issue of abortion and fought for a policy that would not be supportive of abortion, that she had been a member of the Texas Right to Life.”
Dobson, through his Focus on the Family Action, was quick to issue a glowing endorsement of the Bush selection.
“We welcome the president’s nomination of Harriet Miers to the U.S. Supreme Court,” wrote Dobson. “He pledged emphatically during his campaign to appoint judges who will interpret the law rather than create it. He also promised to select competent judges who will ‘not use the bench to write social policy.’ To this point, President Bush’s appointments to the federal bench appear to have been remarkably consistent with that stated philosophy. Based on the information known generally about Harriet Miers, and President Bush’s personal knowledge of her, we believe that she will not prove to be a lone exception.”
Robertson also heaped on praise, and Falwell and the SBC’s Land soon climbed on the pro-Miers bandwagon.
But much of the right-wing base remained unruly. A raft of other conservatives had apparently not been consulted and quickly lashed out. They began attacking Miers as a risky unknown, ill-suited for a spot on the nation’s highest court.
Religious Right activist and pundit Gary Bauer complained about Miers’ lack of public positions on issues such as reproductive rights, gay marriage and religion in the public square. Others, including conservative columnists George Will and Charles Krauthammer, knocked Miers as an intellectual lightweight.
Dobson, Robertson and Land tried valiantly to carry the torch for Miers, but The Post article about the old speech was simply too much to overcome. With more and more conservative groups pulling out the long knives, Miers’ days were numbered.
“I have been greatly honored and humbled by the confidence that you have shown in me and have appreciated immensely your support and the support of many others,” wrote Miers in a letter to Bush announcing her withdrawal. “However, I am concerned that the confirmation process presents a burden for the White House and our staff that is not in the best interest of the country.”
Officially, Miers said she was withdrawing because she did not want to provoke a showdown between the White House and the Senate over alleged confidential documents produced during her tenure as Bush’s chief counsel. Media observers were quick to note this was merely a cover story. In fact, Miers simply could not survive the harsh conservative scrutiny, and Bush did not want to face the embarrassing prospect of her rejection by the Senate Judiciary Committee.
Why did Bush tap Miers to begin with? Some commentators suggested the president, with sagging poll numbers, lacked the stomach for a high-profile battle over the make-up of the Supreme Court so he nominated a staunch loyalist with virtually no paper trail. Miers’ thin legal record, however, appeared to be a major problem for conservatives who have been longing for a major shift rightward on the high court.
The questions about Bush’s nominee, from both friend and foe, started coming as soon as he announced her nomination. The president found himself on the defensive and working feverishly to win support for Miers, a 60-year-old corporate attorney from Dallas who has served on the Bush team since the mid 1990s.
“I can understand people not, you know, knowing Harriet,” Bush told a press gathering at the White House Rose Garden Oct. 4. “She hasn’t been, you know, one of those publicity hounds.”
Indeed, Miers, whom The New York Times editorial page dubbed the “President’s Stealth Nominee,” was selected for the Supreme Court with almost no record on constitutional issues. She has never been a judge, and she has apparently written no law review articles that might shed light on her thoughts on controversial issues likely to come before the Supreme Court.
Instead, it was Miers’ close relationship with the president that played a key role in his selection. Miers worked for Bush when he was governor of Texas and moved to Washington in 2000 to join him in the White House, where she eventually became White House counsel. According to an early August article in BusinessWeek, she was central in leading the administration’s strategy on judicial nominations. And she even led the interview process of potential Supreme Court picks.
According to BusinessWeek, Miers’ “loyalty and discretion” made her a Bush confidant and “one of the capital’s least-known Very Important Persons.”
The president, however, asked the nation – and especially his staunch supporters on the right – to trust his choice.
“I know her well enough,” Bush said at the Rose Garden press conference, “to be able to say that she’s not going to change, that 20 years from now she’ll be the same person with the same philosophy that she is today.”
In light of a nearly non-existent record on constitutional issues, the administration and its surrogates turned to other aspects of Miers’ make-up to rally support: namely her religious background and impressive rise as a corporate lawyer.
Often Miers’ supporters described her as a “trailblazer” of sorts for women. Her backers noted that she graduated near the top of her law school class at Southern Methodist University before achieving great success as a business lawyer in a profession largely dominated by men.
In the early 1990s as Bush was preparing to run for governor of Texas, he hired Miers as his personal attorney. In 1995, Bush as governor appointed Miers to the Texas State Lottery Commission to straighten out the ethically challenged commission.
The president’s vouching for Miers, however, did not quell grumblings from many in his conservative base.
Indeed, the anger on the right snowballed. Right-wing pundits and politicians, including powerful GOP senators, expressed frustration that the president had not nominated a movement conservative with a strong record of opposition to reproductive rights, while others rebuked Bush for feeding into the already growing perception that his administration is rife with cronyism.
The first sign that the nomination was really in trouble came when hard-line GOP senators began expressing doubts. Sen. Sam Brownback (R-Kan.), a member of the Senate Judiciary Committee and staunch supporter of the Religious Right agenda, met with Miers on Oct. 6 and then told reporters he wasn’t sure he would support her nomination.
Brownback said he was disappointed and frustrated over Miers’ refusal to discuss in any detail the high court’s 1973 Roe v. Wade ruling, which ensured a woman’s constitutional right to obtain an abortion. Brownback told reporters that his meeting was unsatisfying, because it left him trying “to gather little pieces of shreds of evidence” on her views not only about abortion but other issues of great importance to the Religious Right such as gay marriage and religion in the public square.
Meanwhile, some Religious Right leaders began complaining that Bush was not listening to them. Bauer, a former Republican presidential contender and president of the Religious Right political group American Values, told The New York Times that conservatives had been lobbying the White House for weeks not to pick Miers.
Bush’s decision to nominate Miers anyway left Bauer fuming. In an Oct. 5 statement, he noted that Miers’ supporters had been playing up her religious beliefs, saying they were highlighting the fact that around 1980 she “dedicated her life to Jesus Christ” and told “friends that she believes ‘life begins at conception.’” He said although such information was “reassuring,” it was hardly enough.
Bauer continued, “As of today, not one friend, associate, co-worker or White House official is able to produce one sentence she has written or spoken in criticism of Roe v. Wade. Her apparent silence is troubling – at least to me. Surely, in a pro-life state like Texas, there was no reason for her to be silent on the fundamental legal controversy of our age.”
He also groused about Miers’ lack of commentary on issues dear to the conservative agenda and declared that Washington culture almost always turns outsiders into leftists.
“If an individual goes his or her whole life,” Bauer wrote, “without writing or speaking about the horrid court decisions – abortion-on-demand, same-sex ‘marriage,’ removal of public displays of the Ten Commandments – why would they suddenly find their voice when they get on the Supreme Court?”
Others piled on. William Kristol, editor of the neo-conservative Weekly Standard, said Miers “has no constitutional credentials that I know of.” Columnist Will said “there is no evidence that she is among the leading lights of American jurisprudence, or that she possesses the talents commensurate with the Supreme Court’s tasks.” Krauthammer wrote, “If Miers were not a crony of the president of the United States, her nomination to the Supreme Court would be a joke, as it would have occurred to no one else to nominate her.”
Ultra-conservative pugilist Patrick Buchanan attacked the Miers nomination Oct. 9 on NBC’s “Meet The Press,” insisting, “If I were in the Senate today, I would vote against it.”
Smelling blood in the water, Religious Right activists began combing through Miers’ past, looking for material to use against her. The Texas Eagle Forum, an affiliate of ultra-conservative flame-thrower Phyllis Schlafly’s lobbying group, was irked that Miers, when running in 1989 for a spot on the Dallas City Council, told a gay rights group that she supported civil rights for gays and said the city has a duty to fund AIDS education and “patient support services.”
“For goodness’ sake, why elevate AIDS over cancer? She shouldn’t have filled out that questionnaire at all,” Texas Eagle Forum President Cathie Adams told The New York Times. “President Bush is asking us to have faith in things unseen. We only have that kind of faith in God.”
And on top of that, the media reported that in the late 1980s Miers had donated $1,000 to Al Gore’s failed presidential bid and another $1,000 to the Democratic National Committee.
Desperate to turn the tide, the Bush administration aggressively played up Miers’ religious beliefs. The White House employed a cadre of high-profile and influential personalities to tout Miers’ religious background, including Bush’s religious outreach representative Tim Goeglein, Texas Supreme Court Justice Nathan L. Hecht, a longtime buddy of Miers, and several prominent Religious Right figures, such as Dobson, the SBC’s Land, evangelical prison ministry guru Chuck Colson, prominent Religious Right lawyer Jay Sekulow and Robertson.
In doing so, the administration seemed only to add to its troubles.
During the confirmation process for Chief Justice John G. Roberts, the topic of the nominee’s religious beliefs was a touchy subject. Indeed, when Sen. Richard Durbin (D-Ill.) asked Roberts whether his deeply held Catholic beliefs would trump his sworn adherence to constitutional law precedent, he was roundly criticized by Religious Right groups.
But all of a sudden, Miers’ religious background, which encompassed a conversion from Roman Catholicism to evangelical Christianity, was being used to rally support.
The New York Times reported Oct. 6 that Hecht, who was described in the piece as “the godfather of the conservative judicial movement in Texas,” had been recruited by the White House and its surrogates in a “media blitz in which he spoke about her devout faith and her decision to be baptized in an evangelical church.”
The Republican National Committee, the newspaper reported, placed Hecht “on at least one conference call with evangelical pastors and conservative organizations,” where he trumpeted Miers’ religious proclivities.
Specifically, Hecht told the story of how he ushered Miers into his church, Valley View Christian, an evangelical Protestant congregation in Dallas. According to Hecht, Miers decided in 1979 that “she wanted faith to be a bigger part of her life.”
One evening, Hecht told the evangelical Christian magazine World, Miers summoned him to her office and declared she was ready to make a commitment to Jesus. Shortly after their conversation, Miers was baptized at Valley View, where she has since played an active role in its missions committee and taught Sunday school.
Sekulow, top counsel for Robertson’s American Center for Law and Justice, also touted Miers’ religion, saying that it was about time the Supreme Court included an evangelical Protestant.
“So this is a big opportunity for those of us who have a conviction, that share an evangelical faith in Christianity, to see someone with our positions put on the court,” Sekulow said on Robertson’s “700 Club.”
Dobson also talked a lot about Miers’ religious beliefs. The politically influential evangelical Christian leader caused a stir when he boasted that Rove had provided him information on Miers before her nomination was made public.
On his Oct. 5 radio program, Dobson explained his support for Miers, saying, “She is a deeply committed Christian. She has been a believer in Jesus Christ since the late 1970s. I know the person who led her to the Lord. I know the church that she goes to. I know it’s a very conservative church. I have talked at length to the people that know her – and have known him for a long time.”
Dobson added, “When you know of some of the things that I know – that I probably shouldn’t know – that take me in this direction, you’ll know why I’ve said with fear and trepidation...that I believe Harriet Miers will be a good justice.”
On Oct. 17, Wall Street Journal columnist John Fund described a conference call on the day Miers was nominated that was coordinated by the Rev. Donald Wildmon, head of the American Family Association. Fund wrote that he had obtained “extensive notes” from someone who participated in the conference call.
According to Fund’s account, the conference call was an obvious attempt to rally Religious Right groups and figures around the nominee. The call included 13 members of the executive committee of the secretive Arlington Group, including Land and FRC’s Perkins.
Hecht and another judge from Texas, U.S. District Judge Ed Kinkeade, were also on the call and were introduced to the group by Dobson.
“What followed was a free-wheeling discussion about many topics, including same-sex marriage,” Fund wrote. “Then an unidentified voice asked the two men, ‘Based on your personal knowledge of her, if she had the opportunity, do you believe she would vote to overturn Roe v. Wade?’
Kinkeade responded, “Absolutely.” According to Fund, Hecht said, “I agree with that,” and “I concur.”
TV preachers Robertson and Falwell were also apparently given advance assurances from the White House.
Robertson told his “700 Club” audience on the day Miers was nominated that he was not surprised by the announcement because he was given a “tip” regarding the nominee.
On CNN’s “The Situation Room,” host Wolf Blitzer questioned Falwell on his contact with the White House on the Miers nomination. Falwell admitted that “Tim Goeglein called me an hour or two before the announcement, and I just simply asked him, ‘Who is Harriet Miers?’”
Falwell then told Blitzer that Goeglein only recounted her impressive record as a Dallas attorney and it was later that he learned, “not from the White House, but from Christian friends, that she’s a fine evangelical Christian lady, a part of an aggressive and evangelical church in Dallas.”
The use of Miers’ religious background to rally the troops placed the president on the defensive. During an Oct. 12 White House appearance, Bush was asked by a reporter why administration officials “feel it is necessary to tell your supporters that Harriet Miers attends a very conservative Christian church?”
Bush responded, “People are interested to know why I picked Harriet Miers. They want to know Harriet Miers’ background. They want to know as much as they possibly can before they form opinions. Part of Harriet Miers’ life is her religion.”
But in the end, none of this was enough. Although the full story has yet to come to light, observers noted that Perkins stepped up his attacks on Miers, and Dobson did an about-face in that direction. Criticizing her 1993 speech, Dobson said, “Based on what we now know about Miss Miers, it appears that we would not have been able to support her candidacy.”
FRC and FOF, while legally separate, remain “spiritually one,” as Dobson put it. Speculation in Washington is that Perkins’ doubts over Miers must have persuaded Dobson to stop defending her. Miers simply could not survive without more broadly based far-right support and backing from key hard-right senators like Brownback.
Bush had yet to name a new candidate for the high court as Church & State went to press. Justice Sandra Day O’Connor will continue to serve until her replacement is confirmed.
Americans United Executive Director Barry W. Lynn said the Miers incident should serve as a wake-up call to all Americans.
“Harriet Miers’ withdrawal shows the disproportionate power of the Religious Right on the Bush administration,” Lynn said. “While there were certainly many reservations across the political spectrum about Miers’ qualifications for the high court, she seems to have been forced out because she was insufficiently far right on abortion, gay rights and church-state separation. This is appalling.”
Concluded Lynn, “I hope President Bush now selects someone who is both abundantly qualified and possesses a clear commitment to individual freedom.”