The Battle Over the 2005 Supreme Court Nominations

Copyright © 2005 Timothy Horrigan

 On Thursday Morning, October 27, Harriet Miers withdrew her nomination. The stated reason was that she and Emperor Bush did not want to release documents related to her service in the White House. Ironically, even though she was a conservative herself, she had much less support from the right than from the left.

On the morning her nomination foundered, the Washington Post published an embarrassing story about her involvement in marketing abusive tax-shelter schemes during the 1990s:

• October 27, 2005 Washington Post article

But there's probably much more to the story than this...

One odd detail is that she hasn't actually resigned from her old job as the White House Counsel. This is currently a pretty tough job. Aside from dealing with the many scandals surrounding the imperial court (which have led to the indictment of at least one high-ranking White House aide), she will also be in charge of vetting her own replacement as the Supreme Court nominee.

After the same group had been together for 11 years, there will be two new faces this season on the US Supreme Court. Just weeks after Justice Sandra Day O'Connor's retirement, Chief Justice William Rehnquist passed away.

A relatively little-known federal appeals court judge named John G. Roberts, Jr. was initially nominated to fill O'Connor's seat. But then, Rehnquist died unexpectedly— and at the height of the Hurricane Katrina crisis. Roberts was nominated for Rehnquist's Chief Justice seat instead.

The confirmation hearings were somewhat overshadowed by Hurricane Katrina and Hurricane Rita, but the liberal wing of the Democratic Party still put up a vigorous fight. In the end Roberts won in the full Senate by a 78-22 vote on September 29, 2005, with his oath of office following at 3pm that afternoon at the White House.

  Click here to see my “old” Supreme Court page (as of the time of Roberts's confirmation vote.)

The Nomination of Harriet Miers

Finally, on Monday, October 3^rd, Emperor Bush named someone to fill Justice O'Connor's seat: White House Counsel Harriet Ellan Miers. She has no judicial experience. She has never even taught law school or argued a case before the Supreme Court. Her resume is a long and distinguished one but not the resume of a Supreme Court Justice. The cynic in me wonders if she is deliberately being thrown to the Senate wolves for some reason. (Or maybe the Emperor simply wants her out of the way any way she can be gotten out of the way. Bush II's Imperial Court circa 2006 is starting to smell like Nixon's White House circa 1973— and in 1973 it was his own aides who did Nixon in. She currently holds the same job John Dean did back then, and perhaps His Dubyaness fears that she might follow Dean's example by ratting out her boss. No matter how the confirmation process plays out, once it's over she will no longer be the White House Counsel.)

She spent most of her long legal career in private practice (including a stint as President of the Texas Bar Association) before serving Governor George W. Bush, President George W. Bush, and Emperor Bush II in various jobs. She is a longtime friend of Bush's and she vividly remembers how they came to know each other: she pithily explains “I met him on a variety of occasions over the course of time.”

The Democrats have stated that they would have preferred a woman and/or minority person in O'Connor's old seat. Miers is a woman (though not a minority)— and yet at least some Democrats will feel free to oppose her nomination simply because her views are not to their liking. Miers is to some extent (perhaps we will find out how much in the weeks ahead) implicated in the Bush Administration's various scandals— and the Democrats will harp on her involvement in those scandals while never mentioning the fact there were also scandals during the Clinton Administration.

According to her White House profile: “She is single and very close to her family: two brothers and her mother live in Dallas and a third brother lives in Houston.” There will undoubtedly be rumors that she is a lesbian, and even so she will face liberal opposition. However, she has been romantically and/or platonically linked to a variety of men, most notably the legendarily reclusive singer-songwriter Kris Woolsey. Below is one of the few pictures of them together, at his secluded studio/ranch in Loving County, Texas.

And here is one of her posing backstage with members of the band, the Kustard Kings, of which Kris was a charter member. Kris is second from left, and Kustard Kings guitarist David Terhune is second from right. The identity of the man in the glasses on the far left cannot be divulged because of national security considerations.

Some Useful Miers-Related Links:

• Senate Judiciary Committee Questionnaire (October 18, 2005)

• Sen. Leahy's & Specter's Response (none too pleased)

• Sen. Specter's & Leahy's October 19 Press Conference

• University of Michigan Law Library “Hot Topics: Harriet Miers” Page

• Washington Post's Supreme Court Blog (registration required)

• White House Transcript of Miers's Nomination Announcement

• Real Player Video of Miers's Nomination Announcement

• October 29, 2004 “Ask the White House” Q&A with Then-Deputy Chief of Staff Miers

• Michael Bérubé's Commentary: “Miers ushers in ‘Age of Aquarius’”

• Kustard Kings' Official Web Site

Hearings are currently scheduled to begin Monday, November 7^th. The White House's current goal is to get her nomination to the floor before Thanksgiving. It is by no means too soon to express your concerns to your Senators, especially if one of your state's Senators happens to sit on the Senate Judiciary Committee. (If you happen to live in Wisconsin, both Senators sit on the committee.) Those Senators are:

We do not know how the confirmation process will go. We only know that the Republican Senators will constantly congratulate themselves on how well they behaved during Justice Ruth Bader Ginsberg's hearings. (It is a little odd that the Republicans choose to harp on the Ginsberg hearings. Her hearings were rather uneventful, and they weren't even the most recent hearings before Roberts's. Justice Stephen Breyer was nominated a year after Ginsberg. Perhaps the Republicans want to distract attention from the hearings before Ginsberg's, the stormy Clarence Thomas hearings.)

Old Transcripts of past confirmation hearings:

• John G. Roberts, 2005 (unofficial)

• Stephen Breyer, 1994 (official)

• Ruth Bader Ginsberg, 1993 (official)

• Clarence Thomas, 1991 (official):

  S.Hrg. 102-1084, parts 1-4 (Some links in PDF format)

  Part 1 (PDF), Sept. 10, 11, 12, 13, 16, 1991 (PDF)

  Part 2, Sept. 17 and 19, 1991    

  Part 3, Sept. 20, 1991    

  Part 4 (PDF), Oct. 11, 12, 13, 1991

  Part 4 Errata (PDF)

A couple of useful links:

• Senate.Gov's list of past nominations

• My old Roberts nomination page

Some of Roberts's Milestones

Roberts's confirmation as Chief Justice marks several milestones, including:

1. He is the first person to have his or her Associate Justice nomination withdrawn so he could be nominated for Chief Justice instead.

2. He is the first Chief Justice to have been a law clerk of the previous Chief Justice.

3. He is the first Harvard man to become Chief Justice. (No Harvard woman has been Chief Justice, either— so far, at least.)

4. He is the first Chief Justice to attend an Ivy League law school other than Columbia.

5. He is the third-youngest Chief Justice ever.

6. He is the first Chief Justice to be raised in Northern Indiana.

7. He will be the first Chief Justice to preside over the impeachment trial of the President who appointed him.