By Peter Baker
Washington Post Staff Writer
Tuesday, October 4, 2005
About two weeks ago, White House Chief of Staff Andrew H. Card Jr. told presidential counsel Harriet Miers to add another name to the Supreme Court selection process she was leading. The new candidate: Harriet Miers.
"What do you mean me?" she asked, according to a colleague.
Miers was hardly the only one surprised, but perhaps neither she nor the rest of Washington should have been. Throughout his career in public life, President Bush has frequently turned to his inner circle for critical appointments, relying on personal judgment and favoring loyalists over the most sterling résumés of better-known outsiders.
In fact, senior administration officials said yesterday, Bush had Miers in mind for the court for two months without telling her. Shortly after nominating John G. Roberts Jr. in July for the first opening on the court, the officials said, Bush and Card began discussing Miers to fill the next vacancy that opened. Card even launched a secret vetting process last summer to investigate Miers -- assigning her own deputy to do the digging behind her back.
The result was a nomination that upended the modern-day conventions of the capital but underscored those of the Bush White House, an institution known for promoting from within, ignoring criticism from without and keeping secrets even from one another. Once he settled in his own mind that Miers would make a good justice, Bush disregarded the likely complaints of cronyism from the left and wails of disappointment from the right in order to install a trusted confidante on the nation's highest court.
"This choice is exactly what it appears to be -- it's the ultimate vote of confidence by the president in a lawyer who has served as his lawyer in one capacity or another for a very long time," said Bradford A. Berenson, an associate White House counsel in Bush's first term. "The president is very, very confident in his judgments about people, and he likes to reward loyalty."
The choice of Miers most strongly recalled Bush's selection of a running mate in 2000, when he likewise ended up picking the head of the team tasked with finding a candidate -- in that case Richard B. Cheney. Even now, five years later, the most certain route to landing a high-level job in the Bush administration is to be close to the president's side.
When he assembled his Cabinet for the second term, Bush anointed White House aides Condoleezza Rice as secretary of state, Margaret Spellings as secretary of education and Alberto R. Gonzales as attorney general. He later tapped longtime friend and counselor Karen Hughes as undersecretary of state and sent his personnel director, Dina Powell, to join her at the State Department.
But that faith in the people around him is not always shared by his supporters. The nomination of Miers immediately triggered great unease, and even open opposition, within Bush's conservative base. Many conservatives wanted a demonstrated champion of their causes and feared another "stealth candidate," such as Justice David H. Souter, who has proved more liberal than President George H.W. Bush, who appointed him.
"The cloud of David Souter is hanging over this nomination . . . and so the conservative reflex is unless we know who you are, then the default position is to be worried about it," said a senior administration official who spoke on the condition of anonymity. "They don't know Harriet very well and they're nervous. The response to that is: But the president does know her very well . . . and I think he's earned the benefit of the doubt. . . . He's not going to waste this pick on somebody who doesn't share his judicial philosophy."
Miers, who was Bush's personal lawyer in Texas, was on no short list when he began assembling candidates for the court. When Justice Sandra Day O'Connor announced in July her plans to retire, Bush directed Miers to oversee the process to find a replacement. The choice of Roberts was widely hailed as a politically shrewd move, and Miers reaped some of the credit within the White House.
At that point, according to another senior official close to the process, deputy White House counsel William K. Kelley suggested to Card that Miers ought to be considered for the next seat that opened. "It began to be kicked around in a small circle of people," the official said. With Bush's approval, Card and Kelley began the secret vetting, looking at Miers's public work.
The Bush team expected the opportunity to fill a second seat because Chief Justice William H. Rehnquist had cancer. If Rehnquist retired or died, aides said, the plan was to elevate Roberts as a nominee to be chief justice and pick someone else for associate justice. When Rehnquist died last month, Bush nominated Roberts and reopened the search for a second justice.
Some of those considered during the first round dropped off the radar screen. Judge Edith Brown Clement of the U.S. Court of Appeals for the 5th Circuit was scratched because she did not impress the White House during interviews for the seat that went to Roberts, according to sources close to the process. Judge J. Harvie Wilkinson III of the 4th Circuit all but killed his chances because he talked about his July interview with Bush in the New York Times.
Bush had long considered naming Gonzales to the court, making him the nation's first Hispanic justice, but conservative opposition was so fierce that it undercut his candidacy. With first lady Laura Bush urging that a woman be named to fill O'Connor's seat, the White House put six women on the short list of 12 to 15 candidates.
Aides said Bush had been dwelling on advice from Senate Judiciary Chairman Arlen Specter (R-Pa.) and others to consider candidates with real-world lawyering experience, not just those from the appellate bench. "He was really struck with the idea of bringing an additional layer of diversity to the court in terms of life experience," said the senior official close to the process.
So when Specter and three other top senators came to the White House for breakfast with Bush on Sept. 21, the stage was set for Miers. Senate Minority Leader Harry M. Reid (D-Nev.) may have helped seal the deal by recommending Miers during the breakfast, according to aides on both sides. Reid told Bush that Miers "is worthy of consideration," said the senator's spokesman, Jim Manley.
Bush sat down with Miers in the Oval Office that same day for the first of four conversations in which she was the interviewee instead of the interviewer. Miers was stunned at first.
"We said, 'Well, Harriet, look at your résumé. Is that the résumé of someone you would recommend the president consider?' " recalled the senior official. "And she said, 'Yes.' "
Last week, the Bush team did something it rarely does with appointments -- float a name in the media to test reaction. The White House also took the temperature of James C. Dobson, head of the conservative Focus on the Family, who gave his blessing if she were nominated. But other Republican supporters dismissed the notion that she would be chosen, seeing her as underqualified, too old at 60, and unable to match Roberts for erudition. "Sitting up there on the witness table after Roberts isn't going to look good," one said last week.
Other conservatives who have been advising the White House began trying to reassure their brethren. "There's a lot of unknown -- people don't know her," said one, Jay Sekulow of the American Center for Law and Justice. "But let me tell you, she is a heavyweight."
In the end, Bush took his own counsel -- figuratively and literally. After interviewing Miers in the Oval Office last Wednesday and Thursday, he headed off to Camp David for the weekend with Card for last-minute discussions, then returned to Washington on Sunday. Bush summoned Miers to the White House that evening and offered her the job. After she said yes, the two and Laura Bush celebrated by sitting down to a dinner of fried shrimp, polenta and chocolate mousse.
"He knows by his relationship with her that the Harriet Miers he knows today will be the Harriet Miers 20 years from now," said the senior official, meaning she would be no Souter. "She knows his expectations. She is the kind of person I strongly believe would never put herself in the position to be considered if she wouldn't meet those expectations."