Former Bush administration senior adviser and political pundit extraordinaire Karl Rove has made it very clear in both his new book, Courage and Consequence, and in radio interviews that he believed that former White House Counsel Harriet Miers was an excellent choice as an Associate Justice of the Supreme Court. Looking at her outstanding career as a lawyer, including: White House counsel, first female chair of the Texas Bar Association, chair of the Texas Lottery, co-managing partner of a legal business (in Dallas) with over 400 lawyers, and chair of the Board of Editors for the American Bar Association, it is very hard to argue with him.
However, I’d like to take another look at this situation from the perspective of management needing to replace a critical manager who was not only doing an outstanding job, but was also extremely well-liked. This replacement is controversial because of the attitude of those dealing with this manager on a daily basis; when replacing an exceptional individual, any candidate becomes controversial. This situation, from the point of view of the acceptance of a “controversial” candidate, may be reflective of Miers’ nomination and Alito’s approval to the Supreme Court of the United States of America.
In regard to the promotion, it is extremely difficult for someone to gain acceptance when replacing a manager who is excellent in all respects, is “loved, admired, and respected” by the vast majority of those they worked with (reports, peers, clients, etc.) and, in other words, “can walk on water.” This is true no matter how good the new manager might be. To the executive who must make this decision, it’s like throwing the new manager to the wolves.
So, if you’re an intelligent executive, do you take your best candidate, the one that you really want, someone who must succeed, and throw them to the wolves? Not if you can help it.
What you do is bring in a transitional manager (TM) so that the team can get used to a new person, someone who they don’t know and love, someone who isn’t “perfect” in their eyes. After six months or a bit more, most of the people who work with the TM have been weaned from their dependence on the original manager and will judge anyone new against the TM, the result: your first choice has a much better chance of succeeding.
Rove appeared on Laura Ingraham’s radio show on Friday morning and, while justifying the Bush administration’s success at getting two excellent Justices (John Roberts and Samuel Alito) confirmed for the Supreme Court of the United States, stated (paraphrasing): “Maybe we made a mistake in judging the reaction to Miers’ nomination, but you have to give us credit for the justices we did get Senate confirmation for.” Laura, for all of her insight as a lawyer and former Supreme Court clerk to Justice Clarence Thomas, had trouble arguing with that.
However, there is another possible scenario that runs counter to Rove’s explanation that the political storm resulting from Harriet Miers nomination might have been a mistake. What if it was a Bush, Cheney and Rove plan to make sure that they got confirmation of the candidate they really wanted? They were, after all, always very good at getting what they wanted.
Roberts’ nomination and acceptance as Chief Justice came first, but it was difficult for the Democrats in the Senate to find significant reasons to fight his approval. His judicial opinions, intelligence, and speaking ability essentially left them speechless. Alito, however, was a different matter. He was a well-known conservative, possibly even a Libertarian. The Senate Democrats would have found much to dislike about his nomination, as would many of the moderates in the Republican party. They gave him a rough time to say the least and, according to Justice Alito, to this day when walking past the Senate Office Building in Washington, D.C., he will cross the street to the other side of the road and keep his distance.
So, let’s assume for the moment that Alito was really Bush’s first choice. Reports from the White House suggest that it was Laura Bush who was lobbying for a female candidate, so it isn’t unreasonable to suggest that Bush, Cheney and Rove had someone else in mind. If that someone else was Alito, they would have known that they had a tough fight on their hands. In addition to past experience, all kinds of candidates were being suggested by everyone who believed they had a stake in the outcome — which meant about anyone with a platform from which to give their opinions.
The problem was, however, most of the “acceptable” candidates tended to be moderate in their approach to the Constitution and in their previous decisions. There was concern that another John Paul Stevens could be appointed, someone who appeared moderate (at least to President Ford) but ended up to be very much on the liberal side of the bench.
Also, remember, conservatives had already lost one excellent candidate, Robert Bork, while having a terrible time with another, Clarence Thomas. The Bush administration wouldn’t want their first choice to have to go through what those two candidates experienced, but they also wouldn’t want to take the chance that he wouldn’t gain Senate approval. The critical issue was to get unanimous support from Senate Republicans because the vote was going to be close.
So, with all of these issues, what do you do?
Well, if you’re smart, you nominate someone that most people–even conservatives–might complain about, knowing that there was a good chance that this person would not be able to gain Senate confirmation. It would have to be someone that you’d be happy with should they get confirmed, but that you wouldn’t worry too much about should confirmation be a problem.
Then, you’d go to this person and tell them what your plan is. That you were going to nominate them, but there was a good chance that the nomination would come under a lot of criticism. If that happened, you would want them to withdraw their nomination, so that you could nominate another candidate.
The nomination of Harriet Miers caused tremendous controversy, with suggestions even being made that Bush was nominating a friend that lacked acceptable credentials to be considered seriously for the Supreme Court. This was one of the few times that there was agreement between conservatives, Republicans, and Democrats. Nobody, it seemed, could figure out why he would nominate such a “poorly qualified candidate.”
After a relatively short time, Miers withdrew her nomination, stating that she was “concerned that the confirmation process presents a burden for the White House and its staff and it is not in the best interest of the country.” A strong feeling of relief went across the country as everyone from liberals to conservatives believed they had won the day.
Now it was up to Bush to present another candidate, and his nomination was Samuel Anthony Alito Jr.; a known conservative. How would this nomination fly?
As it was, the battle was very close with Alito having to survive a concerted effort by the Democrats to sink his nomination as they did Bork’s and almost did Thomas’s. Alito even had to survive a filibuster attempt by Ted Kennedy. Without what was essentially the unanimous support of the Senate Republicans (all but one Republican, plus a few Democrats), this nomination too would have been in trouble.
Nobody has even hinted that this was Bush, Cheney and Rove’s plan from the beginning. Regardless, it is my contention that, whether planned or not, Alito would not be on the Supreme Court today if Miers had not been nominated first. In essence, Harriet Miers was “sacrificed” so that Alito could serve and the United States could maintain the slight conservative advantage in the Supreme Court that is so essential to the maintenance of our freedoms.
As a side note, it’s obvious that the Democrats are willing to do anything possible to stop Supreme Court confirmation for anyone that doesn’t support their view of a nation run by progressive principles, while the Republicans seem to believe that the president of the United States ought to be able to nominate the person of their choice with little more than a stamp of approval by the Senate. Both of these attitudes are a problem for conservatives who are rightly convinced that only individuals who are strong supporters of the United States Constitution as it was written by the founders should be allowed to serve on the United States Supreme Court.
After all, they do swear to “support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion … So help me God.”