With Miers out, what's Plan B?
Now President Bush must find a Supreme Court nominee who can satisfy his base yet clear the Senate.
WASHINGTON — President Bush is getting a "do-over" on his latest Supreme Court pick.
White House counsel Harriet Miers's decision to withdraw her nomination electrified Washington Thursday morning, momentarily diverting attention from the intense speculation over possible looming indictments of White House officials in the CIA leak case.
The news ignited a burst of speculation: Whom would Mr. Bush nominate next to replace retiring Justice Sandra Day O'Connor? And would his next choice trigger the kind of battle royale with Democrats over the future of the court that many activists on both the left and the right seem to crave?
Since nearly the moment Ms. Miers was named on Oct. 3, her nomination was in trouble. As a longtime Bush associate with a slim résumé on constitutional issues, she was tagged a "crony."
Elite conservatives opined that Miers could not be counted on to decide cases as a true conservative.
Key was the fact that she was to replace Justice O'Connor, the court's critical swing vote on divisive social issues, such as abortion and affirmative action. In short, social conservatives felt that Bush had missed the opportunity of a generation to reshape the court.
The White House blamed senators' attitude toward her status as a presidential adviser - and thus the unwillingness to release documents related to her duties - for her nomination's demise.
"She recognized that the process was headed toward an unresolvable impasse," press secretary Scott McClellan told reporters. "Much of her constitutional experience is confidential and protected from disclosure by the executive branch," he added later. Senators, he said, had made it clear she would have to cross a line in revealing information, and she could not do that. Senate confirmation hearings were to begin Nov. 7.
But the fierce opposition from some of Bush's usually loyal conservative supporters - opening up a rare fissure in the Republican coalition - was just as central to Miers's withdrawal, analysts say.
"It was the intellectual elite of the conservative movement that expressed the most concern, not the religious conservatives or the business conservatives," says Carl Tobias, a law professor at the University of Richmond, in Virginia.
"It may give them more power to dictate the next nominee. Do they get a veto? Or does it mean you do a better sell job, like they did on Roberts," he adds, referring to the new chief justice, John Roberts. "But [the selling of Roberts] took them a year."
Money may have also been a factor in Miers's fall. As senators grew increasingly dubious over her qualifications, outside groups that had formed to support Bush's judicial nominations found the financial pipeline had slowed to a trickle.
"The money dried up for the pro-Miers groups," says Manuel Miranda, chairman of the Third Branch Conference and a former adviser to Senate majority leader Bill Frist on judicial nominations. "The big funders simply stopped supporting any effort to support this nominee, including the pro-life organizations and the GOP groups close to the White House."
One social conservative leader, Gary Bauer, said that Bush showed "real leadership" in accepting Miers's withdrawal. "The lesson is that the stealth strategy of nominating someone without much of a record in order to avoid the unpleasantness of confirmation seldom works," he says.
Bush's task, says Bauer, is to nominate someone "who's a clear conservative, because I'm convinced the nominee and the president will win that debate."
Republican pollster Whit Ayres says this tactic of stealth nomination pushed Bush's essential message of "trust me" too far. Although most grass-roots conservatives were willing to trust Bush, at least initially, the elites were not. Bush's Republican predecessors - his father and President Reagan - are partly to blame, in their placing of David Souter and Anthony Kennedy, respectively, on the court. Both justices have proved far less conservative than their sponsors had hoped.
"The David Souter example - and to a lesser extent Anthony Kennedy - have made conservatives exceedingly skeptical of any urge to just 'trust me,' " says Mr. Ayres.
In the Senate, weeks of drubbing on the right took a toll on the confirmation prospects for Harriet Miers. By early this week, even senators inclined to support her were signaling second thoughts.
On the eve of Miers's withdrawal, Senator Frist spoke to White House chief of staff Andy Card to give the president a reading on prospects for the nomination in the Senate. Freshmen conservatives were especially outspoken.
"As the process moves forward, I have every faith that President Bush will nominate someone in the mold of Justices [Antonin] Scalia and [Clarence] Thomas," said Sen. John Thune (R) of South Dakota.
Meanwhile, Democrats, who had been fair.ly quiet on the nomination, expressed anxiety about Miers's replacement.
"The right wing of the Republican Party drove this woman right out of town," said Senate Democratic leader Harry Reid, who had recommended Miers. In a speech on the Senate floor, he said he hoped the president wouldn't "reward bad behavior" by appointing a nominee more to the liking of the party's right wing.
The harder partisan lines already surfacing in the Senate renew prospects of a filibuster over the next nominee and resort to the "nuclear option" - a change in Senate rules that outlaws filibusters on judicial nominations.