Harriet Miers asked that her nominee to the Supreme Court be withdrawn and President George W. Bush made it official Oct. 27. The nomination had lasted barely three weeks.
On Monday, Bush tapped a conservative, appealing to his base and likely sparking a fight with Democrats. Nominee Judge Samuel A. Alito Jr. serves on the U.S. Court of Appeals for the Third Circuit
Miers cited requests by Senators for confidential documents relating to her service in the White House as the reason for her decision. She wrote, '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.'
Her language provided a fig leaf for a decision that was forced by strong opposition from one corner of the conservative camp, which feared her lack of a written track record on the social issues they most care about.
Aside from Bush and a few legal colleagues from Texas, there was no strong support for her. A series of 'get acquainted' visits to Senators generated at best tepid support, and often more questions as to her background and capacity to serve on the Court.
Arch conservatives grew increasingly strident as the 'compassionate' part of 'compassionate conservative' public record became known.
The fact that she even met with gay groups during her 1988 race for the Dallas City Council was an anathema to them. And in fact, doing so was a moderate if not downright progressive thing to do for that time and place.
Interestingly, 'The tail is wagging the dog,' Republican pollster Tony Fabrizio told The Los Angeles Times. He had found that conservative Republicans viewed Miers favorably by a 4 to 1 margin. 'While conservative leadership feels Bush is betraying them, the average rank and file conservative doesn't feel that way.'
Reaction to the withdrawal from GLBT organizations was united and muted. Human Rights Campaign President Joe Solmonese said, 'It demonstrates that the President is beholden to extremist groups rather than to the American people.'
'It was clear that she had to go because she failed to demonstrate a slavish commitment to the agenda of the right wing,' said Matt Foreman, executive director of the National Gay and Lesbian Task Force. He said the right 'brought the same ideological bludgeon to this nomination' that the brought to the Terri Schiavo 'spectacle' when they tried to force a law through Congress.
'What made her especially vulnerable was not [ right wing opposition ] but the combination of her lack of judicial experience and her extraordinarily close connection to President Bush,' said Kevin Cathcart, executive director of Lambda Legal.
He reiterated Lambda's belief 'that a commitment to equality and fairness for all Americans is a core qualification for a lifetime appointment to the Supreme Court.'
The National Stonewall Democrats released a statement on the nomination of Judge Alito. 'President Bush has nominated a socially conservative judicial activist to appease the socially conservative political activists who control the Republican Party and this White House,' said Eric Stern, NSD executive director. 'While judgements on this nomination should not be rushed, the giddy salivation of anti-gay activists over their preferred nominee should disturb fair-minded Americans.'
Alito serves on the U.S. Court of Appeals for the 3rd Circuit, based in Philadelphia. On that court, Alito is often the lone dissenter from opinions of the majority. As a U.S. Attorney, Alito was nominated to serve on the court by President George H.W. Bush in 1990. His judicial philosophy is described by legal experts as in the mold of Supreme Court Associate Justice Antonin Scalia.
Monday, news reports revealed that the selection of Samuel Alito was approved this weekend by anti-gay activists at the request of the White House. Stonewall Democrats said the Concerned Women for America, an anti-gay organization, was contacted on Saturday by the White House to solicit their approval for the nomination.
'If confirmed Judge Alito is likely to be the decisive vote on many critical issues important to all Americans—including the most basic rights of lesbian, gay, bisexual, transgender and HIV-affected people,' said Jon Davidson, legal director for Lambda Legal. 'Unlike the right-wing, we aren't looking for a guarantee of success each time we come before the high court. Our guiding principle as we examine nominees to the Supreme Court is that our clients, and all civil-rights plaintiffs, must have a level playing field when they appear before the Court. ... A level playing field requires a clear commitment to equality and fairness for all Americans, including lesbian, gay, bisexual and transgender people and those affected by HIV. Does Judge Alito's judicial philosophy reflect that commitment?'
Lambda noted that in 2001, Judge Alito authored a decision in Saxe v. State that declared unconstitutional a public school district policy that prohibited harassment against students because of their sexual orientation or other characteristics. The policy focused only on harassment that had the purpose or effect of interfering with a student's educational performance or creating and intimidating, hostile or offensive environment. 'Nonetheless, Alito reasoned that the policy was unconstitutional because it could cover what he called 'simple acts of teasing and name-calling.' Many LGBT students report that they are subjected to verbal harassment; LGBT students are at heightened risk for dropping out of school because of harassment and discrimination,' Lambda said.
