Harriet Miers, Jan Crawford Greenburg, Jeffrey Toobin, John Roberts, Judicial Nominations, Media and Journalism, SCOTUS, Supreme Court

Harriet Miers: Who Deserves the Blame?

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Sigh. Too much to write about, not enough time (or energy). We should have written about this on Tuesday. But since we didn’t, we now have the luxury of assembling a post by commenting on what other people have already written — and snarkily noting that they all say the same thing.
It all started with this article from the Washington Post (via the Huffington Post):

It was John G. Roberts Jr., now the chief justice of the United States, who suggested [Harriet] Miers to Bush as a possible Supreme Court justice, according to the [new] book [Dead Certain, an examination of the Bush presidency, by Robert Draper].

Miers, the White House counsel and a Bush loyalist from Texas, did not want the job, but Bush and first lady Laura Bush prevailed on her to accept the nomination, Draper writes.

Sounds juicy, right? But not so fast.
If you’re already familiar with this controversy, you can probably skip the rest of this post. But if not — or if you are, but want some commentary on the commentary — you can read more after the jump.


Chief Justice Roberts denied the claim, through Supreme Court spokesperson Kathy Arberg:

“The account is not true,” said Supreme Court spokeswoman Kathy Arberg, after consulting with Roberts. “The chief justice did not suggest Harriet Miers to the president.”

In an interview with Rachel Sklar of the HuffPo, Jeffrey Toobin — author of an eagerly anticipated book on the Supreme Court coming out later this month, The Nine — explained the significance of JGR’s official denial: “The Supremes rarely react to stuff in the press, one way or the other.”

Toobin attributes the difference between his and Draper’s account as probably a case of broken telephone: “The White House tried the idea [of Miers as a SCOTUS nominee] out on a variety of people, including, no doubt, Roberts, who got to know Miers during his confirmation hearings. I’m sure he said nice, polite things about her, which someone may have construed as an endorsement for the Court.”

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And Sklar’s reaction:

What was Draper smoking when he wrote that? It struck me immediately that for Roberts to have suggested Miers made NO SENSE on about a zillion levels, from having a political tin ear to exposing himself as a Machiavellian operator trying to stack the court to risking his own reputation on a complete non-scholar to whaaaaaaaaaaaaaa? I think my last reason is the most compelling.

Interestingly enough, another plugged-in Supreme Court observer — Jan Crawford Greenburg, author of Supreme Conflict — had almost the exact same reaction to this news on her Legalities. In a post that appeared a day before the HuffPo piece, Greenburg wrote:

In one of their meetings, Bush casually asked Roberts what he thought of Harriet. Roberts was politely noncommittal—which is perfectly in keeping with what any clear-thinking person would expect from a man as careful and smart as Roberts.

But since other people were in the room, that exchange got repeated, embellished and eventually twisted around. And when the Miers nomination started to implode, at least one White House adviser defensively said, “Well, even Roberts signed off on her.”

Not true. Roberts, a man of caution with a tremendous sense of propriety, did not strenuously object when Miers’ name came up—but he didn’t believe it was his place to do so. He certainly never endorsed her.

And then, just like Toobin, JCG compared it to “a game of telephone.”
Greenburg reacted to the suggestion that Roberts was responsible for the Miers nomination in roughly the same way as Sklar (although with less colorful wording):

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Even if Roberts—who by this point had not even taken the bench as Chief Justice—would do something so out of character as presumptuously suggesting a nominee to the President himself, does anyone really think he would have suggested Harriet Miers? John Roberts? The intellectual giant with a deep knowledge and understanding of Supreme Court history? Roberts, with his distinguished academic, legal and judicial record and his longstanding respect for the Supreme Court as an institution—an institution he would be leading? If he had been someone so presumptuous to make a recommendation for the Court to the President—unthinkable, by the way–wouldn’t he want someone more like himself—say a Carolyn Kuhl? Or a Maureen Mahoney?

We have no reason to think that Toobin and Sklar saw Greenburg’s post before weighing in on the claim that Roberts suggested Miers for the Supreme Court. But it’s just a (perhaps depressing) reminder that in the hypercompetitive online media world, where thoughts can be published with the push of a button, it’s very hard to be the first (FIRST!) person ever to articulate a given theory.
In the blogosphere, preemption is a bitch.
Toobin vs. Draper: Who’s Right On Harriet Miers? [Eat the Press / Huffington Post]
A Labor Fools’ Day Story [Legalities / ABC News via WSJ Law Blog]
Book Tells Of Dissent In Bush’s Inner Circle [Washington Post]

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