Implications of the Failed Miers Nomination

ED GORDON, host:

From NPR News, This is NEWS & NOTES. I'm Ed Gordon.

Yesterday White House counsel Harriet Miers officially withdrew her nomination to the Supreme Court. The Senate requested documents she authored while advising the president. Miers said she stepped aside to protect the president's right to privacy. But some observers believe otherwise. Her nomination had been under intense scrutiny from Republicans and Democrats. Joining us now for more on the legal and political implications of Miers' withdrawal are Charles Ogletree, professor at Harvard Law School; and Terry Neal, chief political correspondent for washingtonpost.com. They join us from our nation's capital here in Washington, DC.

Professor Ogletree, let me start with you. While we allow people to save face politically, if you will, how much do you buy of what Harriet Miers said, that she stepped aside to protect the president's right to private counsel?

Professor CHARLES OGLETREE (Harvard Law School): That has nothing to do with it. This is clearly a response to the assault on Harriet Miers by the conservative Republicans and other conservatives, religious groups. It is a major defeat for President Bush, and in many respects, Ed, it's a defeat for the Democrats. I think Harriet Miers--I like her. She's conservative. She's a real warrior. I think that the Democrats may now rue the day that they didn't try to stand up for this diverse candidate with a variety of qualifications, and the president will come back, I think, with a vengeance and we'll see someone that's much more conservative, probably much more prepared and much more confirmable by a conservative Senate.

GORDON: Terry Neal, Charles Ogletree brings up an interesting point, and that's the fact that people are talking about how this Bush White House is stumbling, yet the idea, as he suggested, that many Democrats were, quite frankly, in favor of this nominee and did not counter what conservatives were doing in terms of talking about her inability to sit on the court. I didn't hear many Democrats outside of the first day talk about the idea that this is not a bad pick.

Mr. TERRY NEAL (washingtonpost.com): Well, first of all, I would disagree with Professor Ogletree just a little bit, in all due respect. I do agree with him that, you know, this idea about the battle over executive privilege is nonsense; it had nothing to do with what happened. Where I would disagree a little bit is, you know, Democrats were never really clear--nobody--Harriet Miers' biggest problem is that no one really knew where she stood on the issues. She's was a question mark, so she had no natural base of support from any quarter among conservatives, among moderates, among liberals. Democrats weren't really sure whether to support her--there was some pressure from the left, a very small amount compared to Roberts, but some people who were concerned about her evangelical ties and some of the things that Karl Rove had privately told some leaders of the Christian conservative movement about the certainty of her desire to overturn Roe V. Wade. So there was a lot of confusion about where she stood.

The bottom line, though, is that what's going to happen is the president's going to come back, he's going to probably nominate someone--he's not going to make the same mistake twice. The only place he really has strong support now is among his conservative base. He's got to appease them. The next nominee will be much more clear where he or she stands and will go back to more of this sort of typical paradigm of fighting between left and right that we typically see here in Washington and...

GORDON: Charles, while there was no legal paper trail like there was for Roberts and other nominees, there was some forecasting that in certain areas, she might be seen--might, I stress--as moderate.

Prof. OGLETREE: Exactly. I've talked to a number of people in Texas, former students, other colleagues, about her role as a lawyer, her role as the bar president, her role on issues of policy and their views about Harriet Miers on issues of race and justice, that she was a moderate; that even though she expressed strong views about the woman's right to choose, that she was open to different points of view. And I think what she was was she was a David Souter, an unknown, unpredictable, stealth candidate, and look what happened with David Souter. To the extent we've had candidates that we've known a little about, they've turned out to be more moderate than conservative, 'cause we know who the conservatives are. They express that almost from birth to death. So I think the fact that the Democrats didn't know enough, to me, was a lot, given that this president had a long list of much more conservative candidates to choose from. And you know what? Gender, a non-judge, all those factors that were relevant three weeks ago will go out the window, and I wouldn't be surprised to see a white male conservative probably sitting on the court not too far from where we are here in Washington today and someone who'll be easily confirmable by a Senate Republican majority.

GORDON: Terry Neal, here's the interesting aspect for me in all of this, and that is I am not hearing enough of reporting from the media with the idea of the real strength of the minority within the minority, and that, in fact, is this evangelical right-wing faction of the Republican Party that seems to be driving, quite frankly, the president's movements, certainly as relates to this nomination.

Mr. NEAL: You know, I think it's fairly clear, most people understand what's happening. If you look at The Washington Post and the washingtonpost.com today, there are several stories about the power of the punditocracy, which is linked to a lot of evangelical right, but I would say this: I mean, in response sort of to what Professor Ogletree was saying about believing that she's a moderate, there's two things that conservatives cared about, OK, in this last election, two things that they sought to get done. When Bush ran in 2000--I covered the Bush campaign for The Post in 2000--there were tax cuts, number one, and number two, they were changing the courts.

I think--and this is speculation because we don't know what happened between President Bush and Harriet Miers in their private conversations, but I think he knows her very well, and I think he has a pretty strong idea what sort of justice she would be. The problem with him is that he has no reservoir of good will, in part because of David Souter and what his father did in putting David Souter on the bench. But George W. Bush knows Harriet Miers much better than his father knew David Souter. His father didn't know David Souter at all. I think in a lot of ways, she was a stealth candidate. She would have been very conservative. George W. Bush did that, but he couldn't convince his own people of that because his reservoir of trust, with his diminishing poll ratings, questions about his leadership and character made even his own people question his judgment.

GORDON: Charles, let me take you back to what I'd suggested there to Terry. I think there is a surface understanding and a surface reporting of the evangelical right, but I'm not still sure whether or not people understand the true political power, and I should note that Tom Brokaw has a special coming up that looks at exactly that.

Prof. OGLETREE: Well, I think we need to be very careful and cautious about giving this conservative minority a sense that they are in some sense a majority. President Bush barely won the election in 2004, and there are questions about whether or not he won the election in 2000, but that's behind us. And the conservative evangelical minority is not the only group that supported this president, and he has to be very careful. You're not going to get any candidate who's going to say, `I oppose Roe vs. Wade and I want to reverse it.' And if they do, I can't imagine a Senate confirming somebody like that. That's what they want. That's not what they're going to be able to get in this Congress in the 21st century.

And I think it's really incumbent upon the president to think about the fact that this was a close election, it's a deeply divided country, the issue of a woman's right to choose is settled, and they should not at all allow this to influence his nominee. I think what Senator Schumer said, a centrist, an O'Connor-like candidate is what the country needs, a healing process. And if he goes far out to the right, there will be a battle royal, more than Robert Bork, more than Clarence Thomas. It will be a battle of the 21st century.

GORDON: Terry Neal, do you agree with that? Are we going to see, if in fact, we see a hard-line conservative named as the nominee, a real fight from the left, filibusters and all?

Mr. NEAL: I think you will, and I think that the White House is probably going to be very careful. They want to find someone like John Roberts who's well known in conservative circles but didn't have the sort of paper trails on contentious social issues that the Democrats could pull out and make an easy case against him. The problem with the president is, he's going to have to appease his conservative base without finding--probably without finding someone who has sort of made a lot of statements about things like Roe V. Wade.

You know, I still question the extent to which Democrats can really sort of sustain, you know, a real effort against anyone. I mean, the problem with the Democrats over the last few years has been their inability to come together and unite on even the most, you know, obvious sort of things. One of them would be Iraq, but, I mean, there have been example after example--the bankruptcy bill, so many things at which the party has failed to do that, and John Roberts, too. So I do think that there's going to be a serious fight. Whether they can be successful as the minority party, that will require a sort of unification that I haven't seen--that we haven't seen from the party in a long time. So this could be a defining moment.

GORDON: One plus for moderates certainly, liberals perhaps, Charles, is the idea that the longer this process rolls itself out, the more cases that Sandra Day O'Connor will continue to hear.

Prof. OGLETREE: Indeed. Justice O'Connor will serve on this court throughout 2005. It's inconceivable that there'll be a nominee in October or November or--and the Congress will be in recess until January. Here's the interesting thought we should keep on our mind: The president has the power to make a recess appointment, and he could make a very powerful statement by appointing a conservative that would serve for a very long time until the Senate would have a time to take it up. And it would be very hard to sort of unravel that. If he makes a recess appointment, which is one of his options, the Democrats will be completely off guard, they will have lost their momentum, they will have no ability to oppose it, and the president will be able to at least appease that hard right by saying, `Here's someone who's on the court now while we wait for a formal hearing,' which wouldn't happen till January or later, 2006.

GORDON: Terry, real quickly, if he, in fact--he being the president--makes the, quote, "right nomination" for the conservative bent, slant of his party, does this put him on terra firma where he has been free-falling for some time?

Mr. NEAL: Well, you know, in a lot of ways, I think it does because--and here's the reason: The president's support among the middle has eroded. It's evaporated. The only place he has support is on the right, and I don't think that he's--he's got a much better chance of regaining some support among his base than among the people that he's lost, and he's got to have at least them back before he can begin working on the middle and pushing some of the rest of his agenda. But I really think a lot of this is going to depend on the effectiveness of the Democrats in opposing the president on this issue and on his agenda. The party--the Democrats have to really step up, and that's why I said I think what happens next is going to be a real defining moment for what happens in the midterm elections and the 2008 presidential election.

GORDON: All right. Well, if you like a political battle royal, we may have one coming up. Charles Ogletree, professor of law at Harvard Law School, and Terry Neal is chief political correspondent for washingtonpost.com. I thank you both for joining us. Appreciate it.

Mr. NEAL: Thanks.

Prof. OGLETREE: Thanks, Ed.

GORDON: And we note, there's complete coverage of the Harriet Miers withdrawal at our Web site at npr.org.

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