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Jerry K. Clements talked to her friend and former law partner Harriet E. Miers on Thursday morning, only minutes after the White House disclosed the news: The president had accepted Miers’ withdrawal of her nomination to the U.S. Supreme Court. “She said she wasn’t angry. But I told her, I was,” says Clements, who is head of the litigation section at Locke Liddell & Sapp, where Miers used to be a co-managing partner. Clements and dozens of other Texas lawyers, including Texas Supreme Court Justice Nathan Hecht, U.S. District Judge Ed Kinkeade of the Northern District of Texas, and U.S. Sens. Kay Bailey Hutchison and John Cornyn, both Texas Republicans, expended tremendous personal and political capital over the past few weeks combating attacks against Miers’ nomination, mostly from the conservative right. Their efforts failed. In a letter to President George W. Bush released on Thursday, Miers said, “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.” In his statement that morning, Bush laid blame for Miers’ withdrawal at the feet of senators, who, he said, pressed too hard for internal White House documents that would breach executive privilege. “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.” Despite the White House’s emphasis on protecting executive privilege, no one who reads newspapers, scans blogs or watches television could have missed the point: Conservatives had galvanized a relentless campaign against Miers’ nomination raising questions about her commitment to their judicial agenda and her credentials. With her confirmation hearings scheduled to begin on Nov. 7, those opponents appeared ready to turn up the volume next week. On Tuesday, a group led by conservative columnist and former White House speechwriter David Frum announced that it had formed a nonprofit organization, Americans for Better Justice, and begun preparing television ads to combat the Miers nomination. The group also launched a Web site intended to raise money for the anti-Miers campaign. “In the long run we’re all going to be stronger because of her withdrawal,” says Ephraim “Fry” Wernick, who had recently joined the board of Americans for Better Justice. Wernick is an associate with the Washington, D.C., office of Akin Gump Strauss Hauer & Feld and a former vice president of the University of Texas School of Law’s chapter of the Federalist Society for Law and Public Policy Studies, a group of conservative lawyers. Ever since Bush announced Miers’ nomination on Oct. 3, conservative columnists had beaten their drums for Miers’ withdrawal. On Oct. 5, two days after the White House announced her nomination, columnist George Will wrote: “First, it is not important that she be confirmed. Second, it might be very important that she not be. Third, the presumption — perhaps rebuttable but certainly in need of rebutting — should be that her nomination is not a defensible exercise of presidential discretion to which senatorial deference is due.” As the cries from critics grew louder, Senate support for the nomination seemed to dwindle by the day. U.S. Sen. Arlen Specter, R-Pa., chairman of the Senate Judiciary Committee, will remember. While stating that Miers’ confirmation amounted to an “open question,” on Thursday Specter chided the Bush administration for withdrawing her nomination. The committee, Specter said, “did not intrude on the executive privilege,” as Bush suggested in his announcement about Miers’ withdrawal. Specter condemned the attacks on Miers’ qualifications, which had been “subjected to a one-sided debate in news releases, press conferences, radio and television talk shows, and editorial pages.” While acknowledging the right of Americans to voice their opinions, Specter said the outcry against Miers precluded her from receiving due process. He pointed out that Miers met the deadline for sending supplemental materials to the Judiciary Committee. Miers sent more than eight boxes of materials late in the evening on Wednesday, but now, Specter says, the senators will not need to read those documents. While numerous prominent Texas attorneys and judges went to bat for Miers — including a contingent of former Texas Supreme Court justices who rallied around her nomination during a meeting at the White House and a group of former Dallas Bar Association presidents who held a press conference to support Miers — their ultimate ineffectiveness raises the question of whether the state’s elite attorneys have wasted their political capital and will be taken less seriously should Bush nominate another Texan to the nation’s highest court. Former Texas Supreme Court Justice Craig Enoch, for one, is surprised at the turn of events, especially in light of his trip to Washington on Monday, when he and five other former justices attempted to bolster Miers’ nomination with the Senate. “I thought we had a good reception,” says Enoch. “I thought they just needed us to get inside the Beltway and talk about her qualifications, which we handled pretty well.” Miers’ spirits were high, recalls Enoch, and “she was very confident about how she would do before the Senate committee,” he says. “But apparently there were other agendas driving the train — on both sides — and for some reason, they wanted a fight. Harriet wasn’t willing to provide them with one.” Cal Jillson, a political science professor at Southern Methodist University — Miers’ law school alma mater — says it would have looked strange if prominent Texas lawyers didn’t support Miers. “People look for the unexpected and discount the expected. Having all of the former Texas Supreme Court justices up there was expected. If it hadn’t happened, people would have noticed its absence,” Jillson says. Jillson says the one Texan who did a little too much for Miers was current Texas Supreme Court Justice Hecht, who gave hundreds of favorable interviews about his longtime friend, many of which probed into Miers’ anti-abortion beliefs. “I do think that Nathan Hecht did his friend no good service. He was entirely too visible by trying to calm the right by winking at them,” Jillson says. “And obviously that did no good. If someone did expend political capital that did no good it was Nathan Hecht.” Hecht did not return two telephone calls seeking comment before presstime. Hutchison and Cornyn each did not return a call. And Kinkeade declines comment. For a half-dozen Texas lawyers who know Miers or the institutions with which she has been associated, the whole episode seems tragic. “This is a huge disappointment for the firm,” says Clements. Locke Liddell lawyers were not surprised, she says, nor unprepared for the onslaught of anti-Miers activity that took place after the president announced the nomination. “We understood the politics from the beginning. We knew the attacks were coming. We always believed in the long run whatever scrutiny came upon her she would survive,” Clements says. Battling allegations of cronyism, Miers, a close friend of the president’s, has had her credentials scrutinized for the past few weeks. In 1985, she became the first female president of the Dallas Bar Association, and in 1992, she became the first woman to serve as president of the State Bar of Texas. She was co-managing partner of Locke Liddell from 1998 to 2000. In 1995, then-Texas Gov. Bush appointed her as chairwoman of the Texas Lottery Commission, where she served until 2000. She graduated from Southern Methodist University School of Law in 1970. “I think that attacks [on her credentials] were unjustified and unwarranted. They were so biased that a rational person could only presume it was about politics. This wasn’t about Harriet Miers. This was about the right wing of the conservative party trying to tell the president who he should nominate,” Clements says. “They never even gave her a hearing.” The withdrawal of Miers nomination may not bode well for SMU Dedman School of Law. The heated, snobbish battle over Miers’ credentials often centered around the school, whose reputation was blackened by conservative commentators who found it an institution of lower learning, unworthy of birthing a Supreme Court justice. In an April 2005 issue of U.S. News & World Report‘s America’s Best Graduate Schools 2006, SMU law school’s overall ranking was No. 52 out of the top 100 law schools in the country. “I am not blinking at the notion that our school got criticized for not being one of the elite law schools,” says SMU law Dean John B. Attanasio. “But if the question is, ‘Does SMU have something to be embarrassed about?’ the answer is no. I think we were in fast company just to have one of our graduates nominated.” Attanasio believes the attack on Miers’ qualifications was orchestrated by two conservative sources: “those who felt there wasn’t enough known about the certainty of her views and those who felt she wasn’t part of the club — that she hadn’t gone to the right schools.” He also feels these attacks were “ludicrous. She has had a storied legal career. I am very disappointed, more for the country than for the school. She was a great nomination and would have been a great justice. My heart goes out to Harriet.” Apart from Democratic attorneys such as Buck Wood and Charles Soechting (now chairman of the Texas Democratic Party) who tangled with Miers during her tenure as chairwoman of the Texas Lottery Commission, Democrats have, for the most part, held their fire about Miers. Many are amazed that Republicans, so disciplined and in lockstep with the Bush agenda, had splintered over the nomination. “Watching this as a pro-choice liberal has been surreal,” says Susan Hays, a Dallas solo and former Dallas County Democratic Party chairwoman. “After looking at her record, I figured Roe v. Wade was gone. But the left never had to raise its voice before her nomination was toast.” At the same time Hays found herself appalled at the way right-wing pundits treated Miers. “The idea that no one educated west of the Mississippi is qualified to be on the Supreme Court is ridiculous,” she says. Hays sees Miers’ withdrawal as a harbinger of the implosion of the Republican Party. “The economic right has used social messages to get the vote of the religious right,” she says. “Now the religious right is demanding a blood oath that you are going to have to overturn Roe to get their support for a nomination.” “Face it, the right wing was not convinced she was going to overrule Roe,” adds Fred Baron, founder of Dallas’ Baron & Budd and a member of the finance board of the Democratic National Committee. “I have said to anyone who will listen that [Miers] is a fine lawyer and has all the skills necessary to be a Supreme Court justice. But if Bush kowtows to the religious right, he can expect a fight from Democrats who want a more moderate nominee.” Baron believes that tactics such as the filibuster and the nuclear option are still on the table for nominees with extreme views. “People are tired of the extreme edge of both parties dominating each issue. We need an independent selection that is not being forced upon the president by one of the factions of his party.” But several pro-life groups in Texas supported Miers’ nomination. “I trust the president,” wrote Joe Pojman, executive director of Texas Alliance for Life on his organization’s Web site. “Bush appears to have made a solid pick.” Pojman still feels Miers would have done a fine job. He says his organization is not looking for someone who has “a demonstrated overt record on abortion,” but rather “someone who has a demonstrated record of following the intent of the drafters of the Constitution.” Whether this original-intent mantra is code for gutting Roe is a question Pojman will not answer. “We are not looking for someone who is going to tilt the Court to the left or the right. We are just looking for a level playing field.” That is what Pojman felt Bush gave the country in Miers, and that is what he trusts Bush will offer in his next pick. But the In-Bush-We-Trust message didnt play well for many conservatives, says Austin political consultant Bill Miller, who often works for Republican incumbents. “The right wing was given an unknown with the words ‘trust me,’ and that wasn’t sufficient for them,” says Miller. “They wanted someone they could crow about and rally around. For them there were too many unknowns. The wink, wink, nod, nod approach just doesn’t work on a national stage for a Supreme Court nominee.” Miller faults the Bush administration for being politically shortsighted by nominating someone without a documented record to defend. “She was being forced to talk about things in her role as presidential counsel, and the White House wasn’t going to give her the tools to talk about them,” he says. “Those guys [senators] were just not going to confirm her with no record. It was going to be a very short hearing.” NEXT NOMINEE? A big question mark remained as of presstime about who the president will nominate to fill the Supreme Court slot of retiring Justice Sandra Day O’Connor. In a brief statement on Thursday, Bush pledged to make a new announcement in a “timely manner.” Christopher D. Kratovil, a senior associate and appellate lawyer with Hughes & Luce in Dallas, says the White House should nominate someone with judicial experience and a heavy appellate law background, much like Chief Justice John Roberts Jr. “It’s back to the drawing board,” Kratovil says. “I think they need to pick the most Roberts-like nominee — someone with impeccable credentials who’s a conservative and not an ideologue and somebody who’s been vetted.” “The White House needs to avoid surprises like that with the next nominee, and nominating a sitting appellate judge would go a long way toward that,” he says. A natural place for Bush to look for a new nominee is the 5th U.S. Circuit Court of Appeals — the federal appeals court whose jurisdiction includes Texas. Three political observers believe Bush still wants a high court nominee from Texas, where he’ll live once he leaves office. The most commonly named 5th Circuit candidates include judges Edith Jones, Priscilla Owen and Emilio Garza — all reliable conservatives. But a selection from the 5th Circuit could bring flak from the left, especially on issues that have conflicted with mainstream jurisprudence. Capital punishment would likely be one of those issues, says Adrienne Urrutia, a criminal-defense attorney who practices before the 5th Circuit. “I wonder if that will be a liability for the 5th Circuit, because Texas is continually getting the attention because of death penalty cases and is continually questioned by the Supreme Court,” Urrutia says. As for Miers’ future, the White House has announced she will continue as White House counsel. Miers now is one of about a dozen nominees since 1789 who have withdrawn their names from high court contention, according to a U.S. Senate Web site. Darrell E. Jordan, a former Dallas Bar Association president and managing partner of the Dallas office of Godwin Gruber, hasn’t talked to Miers since her withdrawal. He has, however, supported her nomination vigorously, going to Washington, D.C., to lend a hand. “If she had just hung in there,” Jordan says. But political consultant Miller believes that Miers’ withdrawal was likely for the best. “She has already endured a lot of humiliation … . It is better that she withdraws rather than bleed to death on the national scene.”

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