This Day in Supreme Court History — October 27, 2005

On this day in 2005, Harriet Miers withdrew her nomination to the Supreme Court. George W. Bush had nominated Miers to replace the retiring Sandra Day O’Connor. According to NPR, conservatives had publicly expressed displeasure with her lack of judicial experience and concern that she might not be as pro-life as they would like. And “[c]onservative legal scholars, such as former Supreme Court nominee Robert Bork, complained that Miers had no experience with constitutional law and no known judicial philosophy to guide her thinking on important issues, such as private property rights and religious freedom.”

Moreover, Bush’s nomination of Miers, who was his White House counsel, elicited accusations of cronyism from, among others, Ronald J. Pestritto, of the conservative think tank, The Claremont Institute. “The substantial weight of the evidence of her capacity to be a justice — that is, the key government positions she has held — are all the fruits of her continuing relationship with the president,” Pestritto wrote.

The Senate Judiciary Committee, led by Senator Arlen Spector (R-PA) and Patrick Leahy (D-VT), expressed disappointment with Miers’s 56-page response to their questions. The committee asked her to resubmit it with additional documents from her work in the White House. Miers’s withdrawal, and Bush’s statement accepting the withdrawal, cited the need to keep executive information private. Miers wrote:

Dear Mr. President:

I write to withdraw as a nominee to serve as an Associate Justice on the Supreme Court of the United States. I have been greatly honored and humbled by the confidence that you have shown in me, and have appreciated immensely your support and the support of many others. However, I am concerned that the confirmation process presents a burden for the White House and our staff that is not in the best interest of the country.

As you know, members of the Senate have indicated their intention to seek documents about my service in the White House in order to judge whether to support me. I have been informed repeatedly that in lieu of records, I would be expected to testify about my service in the White House to demonstrate my experience and judicial philosophy. While I believe that my lengthy career provides sufficient evidence for consideration of my nomination, I am convinced the efforts to obtain Executive Branch materials and information will continue.

As I stated in my acceptance remarks in the Oval Office, the strength and independence of our three branches of government are critical to the continued success of this great Nation. Repeatedly in the course of the process of confirmation for nominees for other positions, I have steadfastly maintained that the independence of the Executive Branch be preserved and its confidential documents and information not be released to further a confirmation process. I feel compelled to adhere to this position, especially related to my own nomination. Protection of the prerogatives of the Executive Branch and continued pursuit of my confirmation are in tension. I have decided that seeking my confirmation should yield.

I share your commitment to appointing judges with a conservative judicial philosophy, and I look forward to continuing to support your efforts to provide the American people judges who will interpret the law, not make it. I am most grateful for the opportunity to have served your Administration and this country.

Later that day, Bush publicly said he “reluctantly accepted” the decision. After touting her accomplishments and strengths, Bush said:

I understand and share her concern, however, about the current state of the Supreme Court confirmation process. It is clear that senators would not be satisfied until they gained access to internal documents concerning advice provided during her tenure at the White House — disclosures that would undermine a president’s ability to receive candid counsel.

Harriet Miers’ decision demonstrates her deep respect for this essential aspect of the constitutional separation of powers — and confirms my deep respect and admiration for her.

I am grateful for Harriet Miers’ friendship and devotion to our country. And I am honored that she will continue to serve our nation as White House counsel. My responsibility to fill this vacancy remains. I will do so in a timely manner.

Spector said he was “sorry to hear that Miss Miers has decided to remove her name from consideration.” He added: “I think that this is a sad episode in the history of Washington, D.C. … The way Harriet Miers has been treated is really disgraceful.”

Leahy said of the withdrawal: “I look forward to consulting with the President on his third nominee to succeed Sandra Day O’Connor on the Supreme Court, and I hope it is a decision he approaches with the necessary independence from partisan factions.”

Justice Samuel Alito later filled the vacancy. (The first nominee was John Roberts, but when Chief Justice Rehnquist died, Bush renominated Roberts to replace Rehnquist.)

This post was drafted by Bridget Flynn and was edited by Matthew Webber, both ISCOTUS Fellows and Chicago-Kent Class of 2019.

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