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Harriet Miers, the 60-year-old Dallas litigator who was President George W. Bush’s choice to replace Justice Sandra Day O’Connor on the Supreme Court, withdrew her nomination, ending three-and-a-half weeks of sometimes scathing criticism from both the left and the right over her qualifications. In a letter to Bush, Miers stated that pressure from the Senate to force her to testify about her White House experience would, in her mind, compromise the independence of the executive branch. “Protection of the prerogatives of the Executive Branch and continued pursuit of my confirmation are in tension,” wrote Miers, who has been the White House counsel for the past year. “I have decided that seeking my confirmation should yield.” Within minutes of the news, attention turned to whom Bush would nominate in Miers’ place. And again, just as Miers’ Oct. 3 nomination itself was a surprise, there was no single candidate who appeared to hold an edge in the nominations process. In Washington, at least, the timing of today’s announcement was widely viewed as directly related to the expected indictments by week’s end of one or more senior administration officials in the CIA leak probe by a federal grand jury. By announcing Miers’ withdrawal today, speculated one Democratic Senate Judiciary staffer, the White House was trying to relegate the Miers news to the shortest time span possible. That’s because once the expected indictments are announced, they will immediately push aside news of Miers’ withdrawal. “This story will be completely trumped by the indictments,” said the staffer. At the same time, it was clear that Miers’ nomination was in deep trouble. Each day brought more tepid comments from Democratic and Republican senators whom she’d visited. And Miers was asked by the Senate Judiciary Committee’s chairman, Arlen Specter (R-Pa.), and its senior Democrat, Vermont’s Patrick Leahy, to redo portions of her questionnaire, which she delivered late yesterday. In addition, new revelations about the nominee, who had been the co-managing partner at Locke Liddell & Sapp, continued to seep out. These included a 1993 speech in which she supported “self-determination,” not government interference, for decisions on issues such as abortion and school prayer, and news that her family was paid about 10 times the assessed value for a piece of property seized in an eminent domain case. “I had not run into a single lawyer or judge, regardless of the guy or gal’s political persuasion, who was affirmative,” says Marion Harrison, the president of the conservative Free Congress Foundation. “There’s no similarity between being a manager or co-manager of a law firm and adjudicating the issues that come before a federal and appellate court.” In large measure, the identity of the next nominee will depend greatly on two factors: how big a fight Bush wants to provoke with Senate Democrats and how much he will feel obligated to listen to his far right conservative base, who desperately want a nominee with impeccably conservative judicial credentials. Social conservatives were among Miers’ first and most vocal critics. In a brief statement this morning, Bush pledged to make a new announcement in a “timely manner.” Hispanic groups, for one, still insulted that there has never been a Latino on the Supreme Court, vowed that this time they would prevail. “The third time’s the charm,” says Estuardo Rodriguez, who runs Hispanics for a Fair Judiciary, referring to the two previous Supreme Court nominations, John Roberts Jr. and Miers. “We’re in full gear.” The most obvious Hispanic candidate, attorney general and former White House counsel Alberto Gonzales, would face the same pressure to turn over records from his service in the executive branch as Miers did, notes Edward Lazarus, a former Supreme Court clerk and author of Closed Chambers: The Rise, Fall and Future of the Modern Supreme Court. “The one name whose stock has to go down today is actually Alberto Gonzales,” says Lazarus, a partner in the Los Angeles office of Akin Gump Strauss Hauer & Feld. “To withdraw Miers because of executive privilege and then put up someone who was White House counsel and say, �Here’s another candidate with executive privilege problems’ would be a very difficult scenario to defend.” There is also the same short-list of women candidates, minus one or two people who reportedly took their name out of contention for the O’Connor seat, citing the debilitating nature of a modern Supreme Court nomination battle. Some of these, such as Edith Jones of the U.S. Court of Appeals for the 5th Circuit, could provoke a Democratic filibuster. Jones is an outspoken conservative who has written forcefully against Roe v.Wade. Others, such as Karen Williams of the 4th Circuit and Alice Batchelder of the 6th Circuit, while far more palatable to Republicans than Miers, may also not pass muster with Senate Democrats. There is also an appellate litigator in the D.C. office of Latham & Watkins, Maureen Mahoney, who is often referred to as a female John Roberts. Like Roberts, Mahoney clerked for the late Chief Justice William Rehnquist and was a U.S. deputy solicitor general, as well. But there’s at least one problem. She defeated the Bush administration when it challenged the constitutionality of the University of Michigan’s race-based admission standards before the Supreme Court. Mahoney represented the University of Michigan Law School in the case and went up against then-Solicitor General Theodore Olson. The Court handed down a narrowly tailored opinion that ruled that states have a compelling interest in creating diverse student bodies. Finally, still waiting in the wings is the original lineup of conservative white male candidates. “The people who have a shot at it now who didn’t have a shot before are the white male conservatives,” says Lazarus, referring to Michael McConnell of the U.S. Court of Appeals for the 10th Circuit, 4th Circuit Judge J. Michael Luttig, and 3rd Circuit Judge Samuel Alito. Of that group, says Lazarus, McConnell is the most confirmable. “He would be supported by a lot of liberal and moderate academics and religious conservatives.” In the end, says Carl Tobias, a law professor at the University of Richmond, there is at least one lesson learned from the Miers debacle: “The president needs to fully consult with senators about the next nominee, and there needs to be full, comprehensive vetting so that there is absolute certainty that the country feels comfortable with the nominee.” T.R. Goldman can be contacted at [email protected].

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