Understanding the Miers Withdrawal

Two legal experts discuss the withdrawal of Harriet Miers as nominee to the Supreme Court. Robert Destro is a professor of constitutional law at the Catholic University of America's Columbus School of Law. Jeffrey Rosen is a professor at George Washington University Law School and legal affairs editor at The New Republic.

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MELISSA BLOCK, host:

And we're joined here in our studio by two legal scholars. Robert Destro teaches constitutional law at Catholic University's Columbus School of Law.

Welcome.

Professor ROBERT DESTRO (Columbus School of Law, Catholic University): Thank you.

BLOCK: And Jeffrey Rosen is a professor at George Washington University Law School.

Hello.

Professor JEFFREY ROSEN (George Washington University Law School): Hi.

BLOCK: You know, I was looking for a parallel with a Supreme Court nominee withdrawing as we've seen with Harriet Miers and I really couldn't find one. I mean, with Douglas Ginsburg, President Reagan's nominee, that name was never submitted to the Senate. He withdrew not because of ideology but because it turned out he'd smoked pot. Are we on new ground here? Jeffrey Rosen, you first.

Prof. ROSEN: Well, there certainly is a history of less qualified nominees having a much harder row to hoe than those who are universally perceived to be qualified. I guess the nearest analogy is Nixon's two nominees, Haynsworth and Carswell, who did I suppose--were rejected. They didn't withdraw voluntarily.

BLOCK: They got to a vote, yes.

Prof. ROSEN: They did. So the process is accelerated in that way, but this is consistent with the historical pattern. Some scholars have estimated that people who are perceived to be qualified get much more support and up to 40 more votes in the Senate than those who aren't. And the fact that she withdrew just suggests that maybe in a 24/7 news cycle, people decide to withdraw rather than bite the bullet.

BLOCK: The process is accelerated, in other words. Robert Destro, what do you think?

Prof. DESTRO: Well, I quarrel with the idea that she was unqualified. I think she was actually quite well-qualified and had some very interesting characteristics, practice characteristics and experience characteristics, that other people don't have, but I think the qualification really is the political one here. And the kind of misreading of the base I think is the real issue here. If you don't have support, and it's going to be, as Senator Feinstein said, a really nasty squabble, then, you know, you're going in with at least one hand tied behind your back.

BLOCK: If you take the argument that the issue behind this withdrawal was executive privilege, separation of powers, then wouldn't that also rule out, say, Alberto Gonzales, the former White House counsel, now attorney general?

Prof. DESTRO: Well, that would--he would have exactly the same problem, but I would suggest--I mean, one of the items on the news today is that Verizon is merging, I believe, with--What?--MCI. And if the president were to pick somebody like former Attorney General Bill Barr, you know, and the Senate had asked questions about the Verizon-MCI merger, you know, he would have to withdraw for the same legal ethics reasons that she's citing here. It's not just executive privilege. You know, you're not allowed to release any kind of information about your client's, you know, legal advice. So even if she hadn't been the White House counsel, she had been a counsel for a corporation, and the same result would have had to happen.

BLOCK: Of course, Alberto Gonzales could have his own political problems, ideological problems, besides paperwork. Jeffrey Rosen, should the president be looking, do you think, for his next nominee to someone who's been on the judge, has judicial experience or no? What's the lesson here if there is one?

Prof. ROSEN: The lesson is that qualifications matter. They matter a lot. And the notion that this has been reduced to an ideological process is wrong. John Roberts, an undoubted conservative, had a much easier ride 'cause he was well-respected. That's why it was so funny to hear Senator Cornyn say maybe Roberts has a twin sister.

BLOCK: Or a sister. Maybe not a twin.

Prof. ROSEN: Well, at first he said he should be cloned and then he said he should have a sister. In fact, Roberts does have the equivalent of a sister. There's someone called Maureen Mahoney who has almost the same qualifications as Roberts, a former deputy solicitor general, a Rehnquist clerk, the same age. She didn't get very far 'cause she argued in favor of affirmative action and that was quite an irony, that the White House ended up picking a less qualified woman who had no published position at the time on affirmative action over a more qualified one who'd supported it. But I don't think that he has to appoint a woman anymore and that's really a good thing for gender politics. On the left and the right, people focused more on Miers' substantive views than her gender, and in that sense, perhaps we've moved to a post-identity politics world where the names on the list are as likely to be men as they are to be women, and that's a good thing.

BLOCK: There are people who certainly say that gender was underlying this, that people were looking at her more closely because she was a woman. You don't buy that.

Prof. ROSEN: Well, it's a hard--it's such a complicated question. She was obviously appointed because she was a woman. The president didn't say so explicitly, but it was reported that Mrs. Bush wanted a woman. Justice O'Connor said Roberts was good in every way except that he's not a woman. But it turned out that being a woman was not enough, and she was attacked not only because she was a woman but because she was perceived as being a crony, less than qualified, not having traditional experience and that, combined with the ideological uncertainty, made her go down. So the lesson is, I think, that these three factors, ideology, political goals and partisanship and merit, all matter a lot. It's a moving piece of the puzzle and ideally you get all three as you did in John Roberts.

BLOCK: Robert Destro, given this background, given what's happened with Harriet Miers, who should the president be looking for as he thinks about this next nominee?

Prof. DESTRO: Well, I mean, I think that Jeffrey has said you want to look for somebody who's really well-qualified to begin with. And he and I may differ on what the qualifications should be. I don't think that it needs to be a judge. In fact, I would prefer that it wouldn't be one. It does, I think, need to be somebody who's got some business experience. It really should be somebody who's got some real hands-on relatively recent practice experience, whether they're a prosecutor or defense attorney or whatever, because those kinds of cases come to the Supreme Court as well, but, you know, if this teaches you anything, it's the value of homework. I mean, if you're going to expect your base to support you, you can't take them for granted, and I think that that actually is what happened here.

BLOCK: Let's talk a bit about the current Supreme Court and what happens with ostensibly retiring Justice Sandra Day O'Connor. She's already heard one high-profile case, doctor-assisted suicide. Other big ones coming up, abortion, a parental notification law, gay rights, death penalty. What happens with this court? Robert Destro first.

Prof. DESTRO: Well, I mean, Sandra Day O'Connor made the mistake, I think, of saying that she would serve until her successor was confirmed and she's living proof that no good deed goes unpunished in that regard because she has lined up just a wonderful job as the chancellor of William and Mary, which is an institution that is very much in sync with her background and her needs, but, you know, she has said that she would serve and so I think that is--she plays the same role. If you were to just say, `Well, we have traded Rehnquist for John Roberts,' you know, the court is exactly pretty much the same. We don't know exactly how Roberts is going to be, but it hasn't changed that much because O'Connor still is the swing vote and I think will vote accordingly.

BLOCK: And, Jeffrey Rosen, we could still be seeing Sandra Day O'Connor ruling on cases before the court now.

Prof. ROSEN: We could, but--and the Democrats have said that she can stay as long as she likes, but I imagine the president wants a nominee in and he will nominate one soon. But the fact that she's still there increases the ability of Democrats and Republicans to drag their feet if they'd like to.

BLOCK: Gentlemen, thanks to you both.

Prof. DESTRO: Thank you.

Prof. ROSEN: Thank you.

BLOCK: Jeffrey Rosen is a professor at George Washington University Law School. He's also legal affairs editor at The New Republic. Robert Destro is professor of constitutional law at the Catholic University of America's Columbus School of Law.

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