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I was very upset when I learned that he was only considering women for the position. I'm so tired of the politics, why would you limit your choices based on gender?
How She Slipped Through by John Fund
Harriet Miers's nomination resulted from a failed vetting process.
Thursday, October 13, 2005 12:01 a.m. EDT
"There's a standard vetting process that we go through with all nominees."--White House spokesman Scott McClellan
"The president is very, very confident in his judgments about people, and he likes to reward loyalty."--Brad Berenson, an associate White House counsel in the first Bush term
President Bush has told friends that he learned how to manage from three places: Harvard Business School, his experiences working in the Texas oilfields and with baseball teams, and from watching his father. In all three places he learned valuable skills: flexibility, the importance of team effort, discretion, how to delegate. The one thing he apparently didn't learn was that you never short-circuit the standard vetting process when filling an important job, even when doing so has worked out in the past.
The vetting of Harriet Miers leaves questions that demand answers, not more spin or allegations that critics are "sexist" or "elitist." It was so botched and riddled with conflicts of interest that it demands at a minimum an internal White House investigation to ensure it won't happen again.
Not only did the vetting fail to anticipate skepticism about her lack of experience in cons utional law or the firestorm of criticism from conservatives, but it left the White House scrambling to provide reporters with even the most basic information about the closed-mouthed nominee. Almost every news story seemed to catch the White House off guard and unprepared.
The skepticism is not abating. Back home, the Liberty Legal Ins ute, the only conservative legal foundation in Texas, has declined to endorse her. Several large GOP donors in Texas have met to discuss spending large sums to run ads calling on Ms. Miers to withdraw. "They include both male and female friends of hers who don't think the confirmation process will be good for her or the country," one told me. "They're not sexists, they're realists." This even though the White House has ominously put out the word in Texas: "If you oppose this nomination, you oppose the president." Everyone knows what the political ramifications of that can mean in the world of George W. Bush and Karl Rove.
How could this have happened? In his Harvard Business School courses, Mr. Bush was taught the importance of fully vetting job candidates. In 2000, when he was preparing to name his running mate, he conducted a months-long vetting process that had a couple of dozen top political players copying tax records, speeches and medical files and filling out an exhaustive questionnaire. In the end, Cheney, the man in charge of the vetting, got the job. To preserve the secrecy Mr. Bush loves, he wasn't replaced when he was asked to consider joining the ticket. So Mr. Bush relied upon his friend to evaluate his own shortcomings.
A real vetting process involves sitting down with potential nominees and grilling them with hard-charging and probing questions that go beyond the existing paper trail--or, in the case of Harriet Miers, the lack of a paper trail. In picking his No. 2, Mr. Bush personally handled the questioning of Mr. Cheney. But the strong "comfort level" he had with him would have predisposed him to avoid no-holds-barred questions. "I expect Cheney tried to be candid, but no one can truly scrutinize their own past--there is too much room for judgment, interpretation, wishful thinking, self-deception," says Steven Lubet, a professor of legal ethics at Northwestern University.
In Mr. Cheney's case, Mr. Bush was lucky. He picked someone who had previously been vetted for secretary of defense, someone who had a 30-year public record and a nationwide reservoir of respect. But mistakes were made. No one anticipated all the questions about Halliburton, the construction company he led as CEO. Columnist Robert Novak reported that no one had even checked Mr. Cheney's House voting record, which included votes against South African sanctions and funding for Head Start. "But in the end, Bush thought the Cheney pick worked out so well the seeds for the Miers decision were sown in that impulsive process," Mr. Novak told me.
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.)
It is unlikely that the vetting fully explored issues surrounding Ms. Miers that are sure to figure in her confirmation hearings, such as her work as Mr. Bush's personal lawyer. Another issue will involve Ms. Miers's tenure as head of the Texas Lottery Commission, where lottery director Nora Linares was fired in a scandal involving influence-peddling and lottery contracts. In a curious move, the White House announced this week that regarding the Linares matter, "Harriet Miers has never commented and will not now on what was a personnel matter." That is unlikely to remain a tenable position.
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."
She did, he did, and the Senate must now deal with a nominee who keeps her thoughts so close to her vest that the number of people outside the White House who have ever discussed judicial philosophy with her appear to be countable on the fingers of one hand. Jim Martin, the man she was engaged to for a year after law school, told the Dallas Morning News they didn't discuss politics and she rarely shared her private thoughts or ambitions. "Harriet was content to be focused on the job at hand," he told the News. "She thought if you do the best job you can, everything will take care of itself."
Things have certainly worked out well for Harriet Miers. But even some of her friends wonder if her Super Glue closeness to the man who appointed her represents the best vehicle or role model to promote the advancement of women in the legal profession. Harriet Miers has taken care of herself. But what about the country?
I was very upset when I learned that he was only considering women for the position. I'm so tired of the politics, why would you limit your choices based on gender?
His wife insisted upon that, from what I understand.
ouch!
Looking at the dubya White House, I'm reminded of the fate of the haunted house at the end of the film Poltergeist.
I don't think the dubya Repubs care anymore. They have achieved their only objective from winning the presidency and Congress: 100s of $Bs in tax cuts for the rich and corps, and record levels of Repub pork.
" the govt, America, everything. We got our $$"
dubya dubya rich dubya repugs
Someone should ask him how many votes she got in the last election. We don't elect couples to the oval office. I hated it when Hilary Clinton decided to put together her health care package and this is turning out even worse.
"dubya dubya rich dubya repugs"
Another convert! Congrats, MB, you're finally getting the picture. It IS as simple as you say.
She gets the benefit of the doubt from me until and if she's proven to be unqualified for the Court. She's going to be questioned by intelligent politicians some who would love to make her look like a fools fool. If she cracks or embarrasses herself under the scrutiny then so be it, but until that happens I'll reserve judgement.
If she fails miserably the President loses more esteem, if she surprises most by coming across in a Robertsesque manner (doubtful) then the President gains a little of the lustre he's lost.
I'm really looking forward to the inquisition.
An appropriate choice of words I believe, jochhe.I'm really looking forward to the inquisition.
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