Miers Nomination Did Not Have Needed Senate Support

Renee Montagne discusses Harriet Miers' withdrawal as a candidate for the Supreme Court with Legal Affairs Correspondent Nina Totenberg. Totenberg says the blame on Senate demands for White House documents was an "out" for a nominee who never earned the necessary Senate support.

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RENEE MONTAGNE, host:

And we turn now to NPR legal affairs correspondent Nina Totenberg.

Nina, this nomination was in effect for exactly 24 days, and for Harriet Miers each day seemed to get worse than the one before. Why now? Why today?

NINA TOTENBERG reporting:

Well, this story about the documents that were being asked would compromise the executive branch privileges and lawyer-client privileges is really nothing more than a cover story. They knew that.

MONTAGNE: Tell us quickly that story, briefly.

TOTENBERG: Well, the pres--yesterday Arlen Specter, the chairman of the Judiciary Committee, sent Harriet Miers a letter very clearly saying basically we don't know anything about you because you haven't written anything publicly and we're going to need to know what you did in the White House. And the president had said he didn't want to produce any of that material, and Charles Krauthammer, the conservative columnist, laid out the strategy two weeks ago. He said, `Oh, this is great. This is--we finally see what the out is. The out will be for us, for the president, that he can't give these documents, therefore she's going to withdraw. That's the way to get her to withdraw.' And that's in the end what happened. But what really happened is that Senator Bill Frist, the majority leader, called the White House last night and basically said the votes aren't there. You saw that at the beginning, that at the Republican Caucus meeting in the Senate earlier this week when everybody came out, and nobody said anything really enthusiastic about the nominee, even people who had been previously backing her like Jeff Sessions from Alabama. And so the votes were not going to be there, and they saw that, and so now they have to move on to chapter two.

And the president now is caught very much between the devil and the deep blue sea because, on the one hand, he doesn't want to look like the right wing of his party has a veto power over his nominee, and on the other hand, he doesn't want to have a huge fight with the Democrats at a time when he's very weak. And on the third hand--not that we have a third hand--on the third hand, if you do one, if you pick somebody acceptable to the Democrats you're probably going to alienate part of your party. You don't--because the president--the list that has been compiled previously excludes what one might call moderate conservatives or people who are really quite conservative, more conservative than Justice O'Connor who's being replaced but not as conservative, for example, as Justice Scalia. And...

MONTAGNE: Nina, before we get on to these possible nominees, let me just very briefly, Senator Specter--one possible other reason I think people will be interested in. Senator Specter, chairman of the Judiciary Committee, yesterday sent a letter to Harriet Miers asking some pointed questions, and also asking if she could assure them she'd be independent from the president. First, did that play a role? Second, how might that play out in the next nominee?

TOTENBERG: Well, that's what I just said--that that letter, which he sent her yesterday, did make a difference. Now if the president wants to pick his old friend Alberto Gonzales, who's the attorney general of the United States and might seem an easier sell because there would be enormous Latino excitement about that kind of a pick and would put the Democrats in a very difficult position--it'd be very difficult for them to oppose him, but he has some of the same problems that Harriet Miers had. He was the White House counsel; he's the attorney general of the United States; he'd have to recuse himself from a lot of cases in the very beginning of his tenure. Just where the president is going is just very unclear, and each--all of the choices that have been most frequently mentioned have serious problems for him.

MONTAGNE: Nina, thank you very much. Again, the news is Harriet Miers has withdrawn her nomination, and we were just speaking to Nina Totenberg, NPR's legal affairs correspondent.

This is NPR News.

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