Thursday, October 13, 2005

Riddle-Led Cour Vet

Apparently Bush really did go with his heart on Harriett Miers, because the standard vetting process used for all other nominees was thrown in the trash for this one. John Fund has the disheartening details.


The Miers pick had its origin in the selection of John Roberts last July. Ms. Miers was praised for her role in selecting him and the wildly positive reaction. At that point, a senior White House official told the Washington Post that William K. Kelley, the deputy White House counsel who had been appointed to his post only the month before, stepped in. The Post reported that Mr. Kelley "suggested to [White House Chief of Staff] Andy Card that Miers ought to be considered for the next seat that opened."

To most people's surprise, that happened with stunning swiftness when Chief Justice William Rehnquist died Sept. 3. Judge Roberts's nomination was shifted to fill the vacancy for chief justice, thus opening up the seat of Justice Sandra Day O'Connor. A quick political consensus developed around the White House that the nominee should be a woman.

Even though several highly regarded female lawyers were on Mr. Bush's short list, President Bush and Mr. Card discussed the idea of adding Ms. Miers. Mr. Card was enthusiastic about the idea. The New York Times reported that he "then directed Ms. Miers' deputy . . . to vet her behind her back."

For about two weeks, Mr. Kelley conducted a vetting he has described to friends as thorough. It wasn't. A former Justice Department official calls it "barely adequate for a nominee to a federal appeals court." One Texas lawyer called by the White House was struck by the fact "that the people who were calling about someone from Texas and serving a Texas president knew so little about Texas." (Mr. Kelley didn't return my telephone calls.)


Regardless of whether or not the vetting process was complete, it presented impossible conflicts of interest. Consider the position that Mr. Bush and Mr. Card put Mr. Kelley in. He would be a leading candidate to become White House counsel if Ms. Miers was promoted. He had an interest in not going against his earlier recommendation of her for the Supreme Court, or in angering President Bush, Ms. Miers's close friend. As journalist Jonathan Larsen has pointed out he also might not have wanted to "bring to light negative information that could torpedo her nomination, keeping her in the very job where she would be best positioned to punish Kelley were she to discover his role in vetting her."

Mr. Lubet, the Northwestern professor, says "all the built-in incentives" of the vetting process were perverse. "In business you make an effort to have disinterested directors who know all the material facts to resolve conflicts of interest," he told me. "In the Miers pick, the White House was sowing its own minefield."

"It was a disaster waiting to happen," says G. Calvin Mackenzie, a professor at Colby College in Maine who specializes in presidential appointments. "You are evaluating a close friend of the president, under pressure to keep it secret even internally and thus limiting the outside advice you get."

Indeed, even internal advice was shunned. Mr. Card is said to have shouted down objections to Ms. Miers at staff meetings. A senator attending the White House swearing-in of John Roberts four days before the Miers selection was announced was struck by how depressed White House staffers were during discussion of the next nominee. He says their reaction to him could have been characterized as, "Oh brother, you have no idea what's coming."

A last minute effort was made to block the choice of Ms. Miers, including the offices of Vice President Cheney and Attorney General Alberto Gonzales. It fell on deaf ears.
First Lady Laura Bush, who went to Southern Methodist University at the same time as Ms. Miers, weighed in. On Sunday night, the president dined with Ms. Miers and the first lady to celebrate the nomination of what one presidential aide inartfully praised to me as that of "a female trailblazer who will walk in the footsteps of President Bush."

Although President Bush is ultimately responsible for the increasingly untenable selection, the nominee bears some responsibility. She could have, as blogger Mickey Kaus has suggested, told the president to appoint her to a federal appeals court with the understanding she would be on the short list for the next Supreme Court vacancy. Or she might have said. "That's very flattering, Mr. President. Maybe another time after I'm in another job. But right now I need to keep my wits about me and give you the best possible advice I can about the other candidates. That's my one and only job, and I don't want to blow it."

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