A Labor Fools' Day Story

Today is Labor Day, and not April 1st, but I have to say I thought someone was trying to play a joke on all of us when I saw the front page of this morning’s Washington Post. Leading the paper is a story about journalist Robert Draper’s new book, Dead Certain: The Presidency of George Bush, which apparently is an inside look at the controversies and dissension among Bush’s top advisers. But what the Post homed in on was this explosive nugget: It was John Roberts who suggested Harriet Miers to President Bush as a possible Supreme Court justice.

Now I don’t know anything about Draper’s book. I haven’t read it. The White House apparently opened its doors to him—he interviewed President Bush, Vice President Cheney, Karl Rove and a Cabinet roomful of other people. Of that bunch, I don’t know who told him that Roberts supposedly “suggested” Miers to Bush as a replacement for Sandra Day O’Connor. I don’t know what his source’s motivation was, other than to dodge blame for one of the most egregious failures of executive decision-making in Bush’s second term.

But I do know one thing. John Roberts did not suggest Harriet Miers to President Bush as a nominee for the Supreme Court. This is a fact. It never happened.

Roberts himself said so last night through Court spokeswoman Kathy Arberg. “The account is not true,” Arberg told the Post after consulting with Roberts. “The Chief Justice did not suggest Harriet Miers to the President.”

There is a story there, but it’s not the one Draper has been told. Perhaps that’s because it doesn’t allow the White House to point the finger at anyone else for Bush’s disastrous decision to nominate Miers—a decision that badly hurt the President with his conservative base, allowed Democrats to unfairly portray Sam Alito as somehow beholden to those interests and, perhaps worst of all, made a laughingstock out of a smart woman who—but for the nomination--would be seen today as an accomplished lawyer who’d served her country with dignity.

When I was writing my book, Supreme Conflict, I spent an enormous amount of time puzzling over the Miers nomination. It made no sense. How could a President who’d just nominated perhaps the most highly qualified lawyer in the United States immediately turn around and tap for the next vacancy his loyal adviser, a woman who—despite a career of “firsts” as a lawyer and bar association leader—was essentially a mid-level law firm administrator totally lacking the background for the High Court? Bush had said he wanted to nominate someone outside the “judicial monastery,” and certainly the Court could use an experienced lawyer who would bring a real-world perspective. But Harriet Miers was not that person. Her experience dealing with complex commercial litigation was embarrassingly inadequate—as the lawyers in the White House painfully realized when she filled out her Senate questionnaire and was asked to list the top cases she’d handled.

Conservatives revolted, and understandably so. Here was Bush’s chance to knock it out of the park: He was in the rare position of actually being able to change the direction of the Court. He was replacing a moderate with a conservative, and Republicans were in control of the Senate. Conservatives thought he understood the stakes and assumed he’d nominate another legal luminary like Roberts, someone who could more than hold his or her own with the intellectual heavyweights on the Left like Stephen Breyer.

His decision to nominate Miers instead was such a disaster that some conspiracy theorists began suggesting that perhaps she was a head-fake: Bush nominated her knowing she’d never make it, just so he could sneak Alito on as he’d wanted from the beginning. As tantalizing as that sounded, it was immediately clear the conspiracy theorists gave the Bush White House way too much credit.

After tapping Roberts for Chief, Bush was determined to nominate a woman or minority to replace O’Connor. Other contenders had come up short. Some were too old. Others had ethics issues. Still others were not considered reliably conservative. And the ones he really liked—his own nominees to the appeals courts like Miguel Estrada, Priscilla Owen, Janice Rogers Brown, Carolyn Kuhl—all had been blocked by Senate Democrats. He’d thought about Miers long before he first nominated Roberts to replace O’Connor, and she wisely declined to be considered. But with contenders dropping out left and right, Bush thought of her again.

George Bush believed—because his advisers had told him so—that Miers was qualified for the Court. Just as importantly, he also believed—because he knew her—that Miers would not drift to the left like David Souter did. It’s impossible to overstate how much the last consideration drove Bush: His dad did not know Souter and relied on his closest advisers to vouch for the reclusive New Hampshire judge’s conservative views. But George H.W. Bush’s advisers—chief of staff John Sununu, primarily--had no idea what they were talking about, and Souter soon was showing himself to be almost as liberal as the justice he replaced, William Brennan. Bush was determined not to repeat what conservatives considered to be his father’s greatest blunder.

And here’s where Roberts comes in. In one of their meetings, Bush casually asked Roberts what he thought of Harriet. Roberts was politely noncommittal—which is perfectly in keeping with what any clear-thinking person would expect from a man as careful and smart as Roberts.

But since other people were in the room, that exchange got repeated, embellished and eventually twisted around. And when the Miers nomination started to implode, at least one White House adviser defensively said, “Well, even Roberts signed off on her.”

Not true. Roberts, a man of caution with a tremendous sense of propriety, did not strenuously object when Miers’ name came up—but he didn’t believe it was his place to do so. He certainly never endorsed her.

But like a game of telephone, the false rumor that Roberts “signed off on her” has now morphed into Roberts “suggested” her. Heck, maybe even the President believes it by now if he’s heard it repeated back to him by his advisers. But it didn’t happen.

And can we pause here for a moment? Even if Roberts—who by this point had not even taken the bench as Chief Justice—would do something so out of character as presumptuously suggesting a nominee to the President himself, does anyone really think he would have suggested Harriet Miers? John Roberts? The intellectual giant with a deep knowledge and understanding of Supreme Court history? Roberts, with his distinguished academic, legal and judicial record and his longstanding respect for the Supreme Court as an institution—an institution he would be leading? If he had been someone so presumptuous to make a recommendation for the Court to the President—unthinkable, by the way--wouldn’t he want someone more like himself—say a Carolyn Kuhl? Or a Maureen Mahoney?

This is where I think you hear someone saying “Labor Fools' Day!”

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