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Harriet Miers Withdraws Supreme Court Nomination

Aired October 27, 2005 - 8:54   ET


MILES O'BRIEN, CNN ANCHOR: We're sorry to interrupt that, but we have some news which is just coming into us. Harriet Miers has withdrawn her nomination to be a member of the United States Supreme Court. That's the bulletin we got from the Associated Press. We're working on getting further details for you right now.
But as you know, since the president chose his White House counsel, Harriet Miers, to replace the position that would be vacated by Judge Sandra Day O'Connor, that particular nomination was met with quite a high degree of controversy, particularly on the far right wing of the GOP, putting the president in a difficult position, as well as Harriet Miers, as she has made the rounds on Capitol Hill, meeting with conservative senators who would be on the committee and who would be questioning her about her intentions and what her thoughts are on the law as she were to sit on the high court.

Dana Bash at the White House with more on this story, which just crossed our wires. Dana, what do we know?

DANA BASH, CNN WHITE HOUSE CORRESPONDENT: Miles, this is actually really stunning, I have to tell you. We just moments ago got a call from the press office. There was a very important statement by the president. And it does say that he reluctantly accepted Harriet Miers' withdrawal from the Supreme Court -- for her nomination, excuse me, from the Supreme Court.

And I can read you just a little bit of Harriet Miers' letter. She says that she is writing the withdrawal because of the fact that she's concerned that "the confirmation process presents a burden for the White House and our staff and it is not in the best interest of the country" -- Miles?

O'BRIEN: Yes. I'll give you an opportunity to catch your breath there, Dana. This is -- you say it's stunning. And I know when you're in the White House press room, these things can tend to bubble out beforehand. Of course, the Bush White House is very tight with these kinds of things. Had you any inkling that this might happen?

BASH: I got to tell you, literally, as this was being announced, I was on the phone with somebody who was dealing with this process, saying I got to ask you the question I ask every day -- any chance she is going to be withdrawn? And the answer was no. But just as that was happening, we got this notice.

Now, I will just read you a little bit more from this Harriet Miers' letter to the president. She says that "members of the Senate indicated their intention to seek documents about her service in the White House." She says that she has "repeatedly been informed that, in lieu of the records, she would be expected to testify about her service at the White House."

So it seems as though part of this is sort of giving her an out. She's getting out because of the controversy, at first glance -- and again, we just got this -- of the whole documents, the issue of executive privilege, whether or not some even conservative senators would be able to look at her records from inside the White House.

O'BRIEN: All right. You know what, Dana, you need to catch your breath there. Dana literally ran out to our position there to get this on. And while you catch your breath, we're going to plug in with Jeff Toobin, our senior legal analyst.

Jeff, stunning is the term that Dana just used. Are you stunned?

JEFFREY TOOBIN, CNN SR. LEGAL ANALYST: Well, I'm certainly stunned that it happened today. But this was obviously a troubled nomination and she was by no means a sure thing for getting confirmed. I do think that the issue of the documents and the fight over whether the Senate could have access to her records as White House counsel is kind of a pretext. The reason why she didn't -- she's withdrawing her nomination is the support just wasn't there. And so she's gone.

O'BRIEN: Yes, let's talk about it. Because the documents that are in question here are documents that the committee would never get ahold of probably, because they're considered privileged communications between the president and his counsel, right?

TOOBIN: Well, and that's why I thought that this revised questionnaire, which was due last night -- and frankly, hour after hour passed, I don't even know if it was ever submitted -- was going to be a big factor in the continuing struggle over her nomination. Because it was almost as if the senators were baiting her into a confrontation, in an attempt, perhaps, to get the nomination dropped. But she is -- but she's gone. And the president's got to start from square one again.

O'BRIEN: Baiting for confrontation. Clearly, they were spoiling for a fight on this one. And I think it caught a lot of people by surprise at how strong their feelings were about it. But there were two issues, really, that I saw. You had an ideological issue, and then you had the kind of Specter issue, which was he didn't feel -- and coming after Roberts, this had to be difficult -- he didn't feel she was fully conversant at the level she should be to sit on the high court.

TOOBIN: And I think you're right. And I think what ultimately killed her nomination was the combination of the two. Because the Republicans would welcome an ideological fight that -- and I suspect we may see one on this coming nominee -- that they will pick a highly qualified, highly conservative nominee, who, you know, will overturn Roe Versus Wade, let's have a fight over that kind of Supreme Court justice.

The problem was, Harriet Miers didn't present that sort of clean fight. She also had the issue of no judicial experience, no experience with constitutional law, cronyism. That was a playing grab that the Republicans were uncomfortable fighting about. They'll fight over the ideology, but they didn't want to fight about conflict.

O'BRIEN: So they really need -- if you're going to do an ideological fight, I guess the moral of that story is you need an otherwise bullet-proof candidate.

TOOBIN: You do, and you may see one. I mean, you've got Priscilla Owen, recently confirmed on the Fifth Circuit. You've got the new judge on the D.C. Circuit, whose name is escaping me at the moment, the African-American woman. These are the -- these are the true blue conservatives who are -- who do have judicial experience, and that is -- those are the fights that the Republic -- that the Republican faced once.

What's worth remembering, Miles, though, is that the people who have been driving this debate about Harriet Miers, the true conservatives, they're not dominant in the American -- in -- they don't control the American center. They are an extreme part of their own party. And the president runs the risk of trying to keep them happy and alienating the middle and getting a filibuster, or losing moderate Republicans. That's the line he's got to walk.

O'BRIEN: All right. Let's -- Jeff Toobin, we'll get back with you in just a moment.

Let's go to Ed Henry now on Capitol Hill.

Ed, I'll ask you the same question. Dana Bash said stunned. Jeff Toobin said not so much stunned except for the timing.

Had you been hearing some rumblings there? Was there any -- had any hand been tipped on Capitol Hill that this might be coming?

ED HENRY, CNN CONGRESSIONAL CORRESPONDENT: It was certainly tipped that it was getting worse and worse. I can tell you that late yesterday I talked to two officials involved in the White House process, and they were acknowledging to me candidly that they felt they had not served Harriet Miers well, and that, in fact, this White House effort, the lobbying effort, had been -- had been really hamstrung by a lot of missteps and a lot of mistakes. And they were feeling like it was just one thing after another, and that the story line was taking on a life of its own.

It was almost a snowball effect, and it was impossible for the White House to turn around. They felt that the only hope would be on November 7. They felt that maybe Harriet Miers at her hearings, the confirmation hearings, could finally get all around all the filters and talk directly to the American people.

The downside, of course, and the challenge would have been that a lot of people were saying she was no John Roberts and that she was having a hard enough time in meetings with senators. Can you imagine what it would have been like for her to face, you know, 18 or 20 senators from both parties, especially when the fire was really coming from the right, not really from the Chuck Schumers and the Ted Kennedies of the world. They were coming from people in her own party -- Miles.

O'BRIEN: Yes. Let's talk about this passage, this salient passage in the White House statement, statement from the president this morning.

He's, you know, reluctantly accepted the decision to withdraw the nomination. On it goes. But then it says this, "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."

Is that -- Jeff Toobin just a moment ago, Ed, suggested that's a bit of a red herring, that there were really other issues at play. What do you think?

HENRY: I think Jeff is absolutely right. It is a red herring. That was a phrase I was just thinking, because they've basically been talking around each other.

The president for the last few days is saying he believes there's a red line and that he's not going to give privileged documents to the Senate. But senators in both parties were telling me and other reporters they're not asking for privileged documents, documents covered by either executive privilege or attorney-client privilege from when she was White House counsel. They were saying these are non-privileged documents.

So the president was really coming up with almost an excuse in the minds of a lot of senators that perhaps that was the way out here. He knew that he -- that this was probably going nowhere, the nomination was stalled. So why not take a constitutional fight and wrap this up in an "I can't turn over these documents," when, in fact, the Senate was not asking for privileged documents. They were asking for non-privileged documents.

I really think Jeff's right. It's almost a side issue.

O'BRIEN: All right, Ed Henry.

We've got CNN's John King, our senior national correspondent, waiting for us. And we'll get to him in just a moment.

Dana Bash also with us. She's had an opportunity to catch her breath as she ran out to give us the news.

One of the things here that's worth pointing out, Dana, there was an ideological issue on the far right. There was an issue about the death of the resume. And the related issue here was the -- the allegation of cronyism. And in the wake of what happened with Katrina and the FEMA director, Mike Brown, that tended to resonate, I think, more than it would have in another time, don't you think?

BASH: The biggest issue on -- for this and for this president, and the reason why this happened, was that massive revolt -- you can really call it nothing but a revolt -- from within the president's own party, one that they absolutely did not expect at all. And because they didn't expect that, as Ed was pointing out, as we have been reporting for weeks now, because they didn't prepare really for that and prepare the process at all the way they should have and the way that you would expect this White House to, that led them to one misstep after another misstep after another misstep.

Trying to sort of recover from that, trying to first appeal to the conservatives, but really not setting the right tone with them, talking about religion and then trying to sort of go back to the resume. Well, that didn't work either, because apparently her meetings on the Hill went very, very, very poorly, even talking to Republican senators about that. So that was probably the biggest issue.

Let me just go back to a little bit more about how this went down.

I said at the beginning it was stunning, and I think that was more talking about the broader concept of President Bush putting up a Supreme Court nominee to a Republican Congress and having to withdraw that nomination. That, just in the big picture, is stunning, certainly not given all that we know about it and the difficulties we know have been going on with this nomination.

We know that Harriet Miers actually talked to President Bush at 8:30 last night. That is when she and he agreed that she would withdraw her nomination. And then, of course, we have this letter. And this is the letter that we have from Harriet Miers that she did send to President Bush, explaining that she thinks that she has become more of a burden than anything else, and also talking about the whole document issue.

And, you know, Jeff talked about it, Ed talked about it, but that this might be a red herring, a side issue. But they were working for what many in this town have been calling an exit strategy, and that's the document issue. The document clash has certainly been one of the top reasons why perhaps they would at least give for her withdrawal.

O'BRIEN: Well, you know, it's interesting, though. The document issue, when you read this letter, does lead back to the experience and resume issue. Because I've got the same letter you have now.

And it says -- Harriet Miers says, "I've been informed repeatedly that in lieu of records I would be expected to testify about my service in the White House to demonstrate my experience and judicial philosophy. Well, I believe that my lengthy career provides sufficient evidence for consideration of my nomination. I am convinced the efforts to obtain executive branch materials and information will continue."

You get the sense that she was not -- she was going into hearings a little bit scared of what they might ask her.

BASH: Oh, there's no question about that. I mean, if you heard one more Republican senator call these hearings "make-it-or-break-it hearings," you know, for anybody it would be probably frightening and probably a little bit scary. And you're right. This document issue is at its core about her experience, the question about her experience.

I just talked to one senior official who said, you know, "Maybe we misjudged the whole concept of senators, Republicans and Democrats, saying that they wanted somebody from outside the monastery, somebody who's outside the bench."

That is the reason from the very beginning this White House said that they put Harriet Miers up, because they thought it would be interesting to have somebody with real world experience, and that is what even some Democrats wanted. Well, they admit here they misjudged that.

But I can tell you just very quickly and looking forward, we are told that not immediately do they have the replacement nominee for Harriet Miers, but we are told that that should happen shortly. Not certain exactly when it will happen.

O'BRIEN: All right. Dana Bash at the White House.

Let's get it over to John King, our senior national correspondent.

John, let's bring in yet another somewhat potentially-related story here, and that is what is happening to the White House with the CIA leak probe and Karl Rove being a target of it. He is -- he's known as the architect. He is the political mind of the White House and has been distracted, and thus the White House is left with a rather embarrassing episode here.

How embarrassing is it?

JOHN KING, CNN CHIEF NATIONAL CORRESPONDENT: Well, Miles, Karl would insist he's not distracted, but everyone at the White House insists that. And of course they are.

I went through something very similar to what the Bush White House is going through now during the Clinton-Lewinsky days. And everyone says they're not distracted. Of course they are.

And add in -- you mentioned the CIA leak investigation. Now you have the president being embarrassed, essentially, into having to withdraw a nominee for the Supreme Court. And look at the disarray in the Republican Party because of the indictment of the former House majority leader, Tom DeLay.

This is both a party and a presidency right now at the precipice, if you will. The Democrats did not have to lift a finger to create this turmoil, but they will be emboldened by what they see, what they believe to be a weakened presidency. And tomorrow we are likely to find out what happens with the CIA leak grand jury.

You have a president right now who is at war with his own party. As Dana just noted and has been reporting over the past couple of weeks, it is conservative organizations that have raised all these questions about Harriet Miers and have directly challenged a president who was once their hero.

And when you see so many Republican on Capitol Hill refusing to back this president up, this is a president only one year into his second term who has a major problem. He needs to pull his party back together, he needs to pull his presidency back together. And the big question now is, will he get his back up and will he pick another fight with the conservative base of the party because they forced him to do this, or will he pick somebody that they like? And that is the key question for this president now who is clearly weakened.

Now, don't underestimate him. He has rallied aback in the past. But this is a defining moment for this president, who has much he would like to get done on the domestic front, an important international agenda, too, including the unpopular war in Iraq.

This is a big test for this president. He is weak right now.

As Dana noted, I spoke to a former senior administration official just last night who said this was an unimpressive pick, the president never should have done it. But the last thing he could do right now is back down.

That aide -- that former aide saying that that, essentially, would be the dam coming down, that everyone would then challenge the president if he withdrew this nomination. Well, he's done it.

O'BRIEN: Well, it's interesting, John. The way you put it there, the president is almost painted politically into a corner. He has to at this point, when you look at the political tea leaves, pick somebody who's going to appeal to the right flank, right?

KING: Well, sometimes that's when presidents and good politicians are at their best, when they're painted into a corner. So don't count him out just yet.

As the president is fond of saying, making jokes, and when he sometimes trips over his own tongue, don't misunderestimate him. He is a tough man. But his back will be up now.

This is a man who is very competitive. And make no mistake about it, he is mad the people that he thought that should give him the benefit of the doubt, that he should thought should back him up directly challenged him.

Now, the White House does not believe many of these conservative organizations that challenged him on this, they don't believe they actually represent many voters out in the country. They believe that they use these fights to raise money, direct mail letters saying, "Help us defeat Harriet Miers" to raise money.

They are mad at them, but guess what? Those groups that the White House would like to say are fringe groups, they just won this round. And it's a pretty big battle. The question now is, does the president go back to that conservative base, or will he pick another friend? Will he pick the attorney general, Alberto Gonzales, and, in essence, pick another fight with the very groups that forced him to withdraw Harriet Miers? This is a big test for this president. We are going to learn a lot about the tone of the rest of his second term by how he responds to this.

O'BRIEN: And John, just as you were speaking we learned a little bit about the tone of the news day ahead. It will be all about Harriet Miers.

Patrick Fitzgerald, the special prosecutor, says there will be no announcements today coming out of that grand jury investigation now two years old into the CIA leak probe.

Jeff Toobin is still on the line with us.

Jeff, what comes through loud and clear here is that conservatives are really insisting on a litmus test for whomever is nominated to fill Sandra Day O'Connor's vacancy.

Is that appropriate? What do legal scholars say about that?

TOOBIN: Well, you know, this is, above all, a political process, not a legal process. You've got a political president and a hundred political senators who are in charge. And I think what this will be is a test both of what the president thinks of his conservative base and whether he is committed to keeping them happy. And if he is, how committed are the Democrats and moderates to fighting a choice like that?

You know, is -- would an appointee like Janice Rogers Brown, who is the African-American woman on the D.C. circuit, much beloved by the conservative movement, would she prompt a filibuster by the Democrats? And would moderates -- you know, the few moderate Republican senators, vote against her?

These are going to be the issues.

Or, does the president, as I think John just said, try another moderate like Alberto Gonzales, who would be the first Hispanic? He would not raise the same qualifications issues, but many of the same conservative groups that were angry about the Miers nomination would be angry about a nomination of Alberto Gonzales.

That's -- those are the dilemmas in front of the president at this point.

O'BRIEN: Well, and there's already been -- excuse me, Jeff -- there's already been a few shots across the bow on the Gonzales issue. Conservatives have already kind of made their intentions be known here.

So, clearly the president, the White House would be going into that. There wouldn't be a surprise there if they heard problems about a Gonzales nomination.

TOOBIN: There wouldn't be, but again, as we discussed earlier, the qualifications issue which was so damaging to Miers, the fact that she had neither any judicial experience nor any experience in constitutional issues, would really not be nearly as present with Alberto Gonzales. He was a justice of the Texas Supreme Court. He's been attorney general. He has taken public positions on issues.

Now, some of those issues are unsatisfactory either to the left or the right. The Democrats would be unhappy about his relationship to the torture issue and legal opinions he rendered there. Republicans would be -- some Republicans would be unhappy about his apparent comfort with the issue of legalized abortion and affirmative action.

Those are the kind of fights you would get with Alberto Gonzales. But qualifications would not be as much of an issue.

O'BRIEN: Back to John King at our D.C. bureau.

John, how much do you think gender plays an issue as the president considers other picks? Jeff Toobin, I noted just a few moment ago, talked about some of the other conservative candidates who happen to be women.

KING: Well, there are a number who are women. The president has always said that there would be no gender test, if you will. But he faced pressure from -- among many, including his wife, the first lady, Laura Bush, to replace Sandra Day O'Connor with a woman.

Remember, the president's first pick to replace Sandra Day O'Connor was now chief justice, John Robert, a man. And then, of course, Chief Justice Rehnquist passed away and John Roberts was nominated for chief justice.

So there of course will be pressure on the president to replace a woman with a woman. That will be one of the factors.

We know the president met with several women candidates in the first round when he ended up picking now Chief Justice John Roberts. And we were told he was impressed with some of those, not so impressed with others. Certainly that will be a factor.

I think obviously the number one issue for the president is going to be confirmation, getting someone who can be confirmed. The number two issue, as I noted earlier, is to how this president decides politically to weigh in here, whether he wants to pick another fight, whether he wants to be defiant to the conservative wing, or whether he picks somebody they will quickly embrace. And the fight then more likely will be with the Democrats.

A couple of quick other details, Miles.

First, a statement from the Senate majority leader, Bill Frist. A very -- this tells you a lot. It doesn't say much, which is the story. You would expect the Republican majority leader of the United States Senate to stand with the Republican president of the United States, and perhaps say that it is unfortunate, that it is too bad that people bullied Harriet Miers. Instead, Bill Frist says, "I respect her decision and appreciate her service. I look forward with anticipation to the president naming the next nominee quickly."

Bill Frist trying change -- turn the page immediately, if you will. And here's one reason why.

I'm told by a senior official that there was a meeting in the Senate last night. Vice President Cheney attended. Ed Gillespie, the former Republican National Committee chairman who was a close political adviser to the White House on these judicial picks, was at that meeting. Harriet Miers, as well, I'm told likely was at that meeting.

The vice president went up to Capitol Hill to try to put this back in the box, if you will, to try to tell the Republicans in the Senate, look, this is important to the president, let's quiet this debate down, let's get Harriet Miers into the hearing process and try and get her confirmed. Apparently, that meeting did not go well, Miles, and that is why you have the stunning, I will agree with the word "stunning" decision from the president of the United States today.

O'BRIEN: Well, I suspect when we look back on this, that meeting probably will be a pivotal moment. Let's talk about timing for just a moment.

Senator Frist saying next nominee, and the next -- and we look forward to that next nominee being brought forward quickly. What is the timing imperative here? Sandra Day O'Connor says she will wait until a successor is picked. Is the president in a hurry?

KING: Well, certainly the president wants to move on. The longer he waits to have a new nominee, the more we talk about the embarrassment here and the defeat for the White House on the Harriet Miers nomination. And certainly the president wants to put his stamp on the court.

That's a very -- it's a -- it's more of a question for Jeff Toobin, I think, in the sense that it now looks like we may have Justice O'Connor on the court for a longer period in this term.

Everyone assumed that she was almost holding a spot and that she would not have an influence, would not have votes in the cases to be heard by this court. Given where we are on the calendar year, the president needs to move very quickly if he hopes to get this nominee confirmed by the end of the year. He's almost running up against that when you talk about the congressional recesses coming up around Thanksgiving and then the holiday season.

The president would have to move at lightning speed to get his nominee confirmed this year. So I think you have a political question, how fast can he move? Obviously he has screened candidates for both the Roberts and the Miers nomination. So he has a short list. He could move relatively quickly/ He is known to move quickly.

But he also has the legislative calendar. So there's that political question. And I think one of the domino effect, if you will, is that Justice O'Connor may have a bit more of a voice in this current term than any of us would have expected.

O'BRIEN: Well, that -- you mentioned Jeff Toobin. Let's have him discuss that for just a moment.

Suddenly the Roberts court has that pivotal O'Connor vote still present there. And there was some assumptions that we'd all made that she was just going to be there for a little while. Different scenario now.

TOOBIN: Well, quite so. And the rule on voting on the Supreme Court, she has been present for all of the oral arguments so far this year. But the way the Supreme Court votes is, your vote only counts when the opinion is issued.

So many people thought she would be present for the argument, but in fact wouldn't wind up having a vote in many of these cases. But clearly, you know, the court begins the first Monday in October, they've been hearing cases for almost a month. Some of these decisions will come out with Justice O'Connor participating.

And keep in mind, there are some big cases coming up this year. You know, there has been an argument in the Oregon right to die law. On November 30, the Supreme Court will be hearing its first abortion case, an issue about parental notification law in New Hampshire.

Sandra Day O'Connor, as we all know, is a pro-choice vote. She may wind up voting in that case, because, as you point out, it seems like it's going to be very difficult to get a justice confirmed by the end of the year. If that case is decided quickly, she will get a vote.

So Sandra Day O'Connor, she did not retire from the Supreme Court. She announced her intention to retire. And she said she will serve until her successor is confirmed. And as we all know, that's not going to be anytime soon.

O'BRIEN: She's needing to cancel a few more vacation plans, I suspect.

Dana Bash at the White House, John King said the administration needs to move at lightning speed. Do you see much evidence of that? Have you heard any indication about that this morning now that this has just come out?

BASH: About moving forward quickly?

O'BRIEN: Yes. BASH: Yes. I just -- I talked to a senior official who said that we should expect that to happen very quickly. How quickly is a big open question.

But I should tell you just again, trying to pick up the pieces of what we're learning as we're learning it, about how this all went down, I am told at the Senate majority leader, Bill Frist, was in touch late yesterday with the White House, first his office on a staff level, and then he personally with the White House chief of staff giving an honest assessment about the prospects that Harriet Miers had on the Hill. And obviously he was clearly pretty blunt, saying that the prospects were not good.

You know, we heard yesterday the already very loud noise, if you will, from -- or criticism, I should say, from Republicans on -- in the Senate get even louder and even more public. The things that we were hearing, that I was hearing, other reporters were hearing, frankly, on background, about how poorly the meetings were going, about how really unsure some of the key Republican senators were, were, frankly, out in the open. And that is something that clearly propelled the Senate majority leader to call the Republican president.

The Republican majority leader to call the Republican president, which, again, if you think about it, is pretty amazing to say it's just not going happen. And frankly, that is the call for all of us who are looking to see, is this really going happen, will she actually withdraw, that is the call most of us were sort of looking to see if it would occur. And it did last night -- Miles.

O'BRIEN: As you said, you ask the question every morning, and yet still it is stunning. I want to share -- Dana, stay there.

I want to share with our viewers just that passage in the president's statement this morning where he says this: "I and understand share her concern about the current state of the Supreme Court confirmation process. 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."

Help -- help viewers understand, Dana, what sorts of documents they're alluding to here and whether that was truly the pursuit of the Senate committee.

BASH: Well, to answer your first question, what kind of documents, really that could be anything. As White House counsel, pretty much everything that relates to anything legal that you are talking about or the president has to deal with crosses your desk. And that -- it's considered at this White House and past White Houses, that's considered executive privilege, that that should not be made public, especially while the current president is in office.

So that is what Harriet Miers was referring to. Whether or not it was a legitimate or a real concern of those in the Senate, even some Republicans, that's an open question. You know, we just heard Ed Henry report that they really weren't asking for documents that were necessarily that potentially damaging. They really were just trying to figure out where Harriet Miers stands, what she believes in, and that kind of thing.

As I said, you know, sort of the political buzz has been that perhaps the White House could use the document issue, as it's been called, as her exit strategy. It seems that that is perhaps what they've done here.

O'BRIEN: You know, you think back on this, nominations that have been withdrawn, and the experience is kind of -- the benchmark experience on this is Bork, you know. The term is "being Borked," "to get Borked." It's become a verb.

It occurs to me this is an inside-out Bork experience.

BASH: Exactly.

O'BRIEN: Bork was extremely experienced, but also considered very conservative, too conservative for the taste of Congress at the time. In this case, you have a thin resume and someone who is considered not conservative enough.

BASH: It really is the opposite of Bork. You're exactly right. It is because Bork had such a long list, such a thick resume, a long list of documents and a record that Democrats were able to sort of get rid of him.

And with Harriet Miers, the problem is that she really had such a thin resume and really no -- a blank slate. And when you talk to conservatives, that really was their biggest problem.

Look, conservatives wanted a fight. They have been waiting for this for so long. And they see the Supreme Court, and even the discussion over the nomination of the Supreme Court as an opportunity to have an ideological, a public debate over what is -- should and should not be in this country. And they essentially thought that the president by picking somebody who doesn't have a record, or they thought even an interest in these big issues facing our country, was shined (ph) from a very important fight for conservatives.

O'BRIEN: Dana Bash at the White House. Back with you in just a little bit.

Our senior correspondent, Candy Crowley, in Washington as well.

Candy, let's put this in a larger context, going back to the 2004 election. And we talked about election night, immediately thereafter, about cultural war, the so-called cultural war that's under way in the United States.

Is this more proof that that's alive and well?

CANDY CROWLEY, CNN SR. CORRESPONDENT: I think this is just more proof that the White House has had a tin ear where it didn't used to have. I mean, this was from the get-go a stunning pick. If this is a stunning end, it was a stunning pick.

This really took conservatives by complete surprise. You don't ever want to surprise the people who have been closest to you.

Over the weeks, when you talked to conservatives, they said, look, since Ronald Reagan there have been six names out there, six or seven names. Had it been any of those the group would have come in around him, it would have been great. This completely took them by surprise.

I don't think that you can look at this as a culture war in terms of, you know, church, state, abortion, that sort of thing, because this was an internal war, not a Democrat-to-Republican war.

O'BRIEN: Candy Crowley, back with you in just a little bit.

Amazing. She just said the White House has a tin ear for the politics. That in itself is a remarkable statement given the success of the political side of this White House -- Zain.

ZAIN VERJEE, CNN INTERNATIONAL ANCHOR: Miles, as we've been discussing, many Republican senators so skeptical of Harriet Miers, saying essentially, look, she's just not good enough, she is not competent enough, she does not have a grass on constitutional law.

Joining us now is Senator Trent Lott. He joins us from Capitol Hill.

Thank you so much, Senator.

Are you pleased that she's withdrawn?

SEN. TRENT LOTT (R), MS I think she made the right decision, and I think she deserves a lot of credit for realizing that this was going to be very difficult, particularly in view of her position as White House counsel.

We needed to know more about her. We needed to know more about the positions she had taken at the White House, and that was going to create constitutional executive privilege problems for the president.

And I'm just pleased that she stepped up to the realization that she should step aside. I think it's in the president's best interests and in the country's best interests.

And I had problems with her in terms of her experience and qualifications, and I've said so. I was withholding final judgment until I had a meeting with her and saw what she had to say further.

But I think this is a good thing for the president and for the process. And I think he'll come up with a very strong nomination in replacement.

VERJEE: So you met with her and you weren't impressed?

LOTT: I have not met with her. I had had some contacts with her in her counsel position. And I had difficulty with it. I just was concerned that she was not strong enough, dynamic enough, had enough experience in the constitutional area to be on the Supreme Court.

It was not a philosophical, regional, religious thing with me. It was a worry about qualifications and competence.

And that's to not say she's not a wonderful person and a good lawyer, but you want more than that.

I think a good test is: Is this the best that you can find? And if the answer to that is "probably not," then you shouldn't go with a nominee that you worry about that.

VERJEE: Harriet Miers's letter to the president essentially said this, the "protection of the prerogatives of the executive branch and continued pursuit of my confirmation are in tension," essentially saying, you know, the access to the documents has become an issue, and essentially wanting to protect that confidentiality.

But do you, Senator Lott, think that this withdrawal was essentially as a result also from pressure from the conservative party?

LOTT: I really think probably the executive privilege question was a serious concern by Harriet Miers. From what I do know about her and what people tell me about her, she is very loyal. She would be very concerned about protecting that right of the president. It would have not been a problem for me in that, if the president said, "No, I'm not giving you that memorandum under executive privilege; she is my counsel," I would have said, "OK."

But it presented a problem for others, and it also was a problem in helping the Senate know what her positions were and who she was.

So I think while pressure was involved -- and that was a part of it, you can't deny that -- I think it really was bigger questions. I think it was a fact that a lot of the president's friends and supporters in the Senate were saying, "Geez, we're just not really comfortable with this nominee."

VERJEE: What kind of nominee would you be comfortable with? What kind of replacement do you want to see?

LOTT: Well, I want the president to look across the country and find the best man, woman or minority that he can find, with great educational background, as much experience as possible, an understanding the Constitution, a strict constructionist -- yes, a conservative. And there are lots of choices out there that I think he can find.

And I predict that he will come up with another strong nominee, like he did with John Roberts. And the minute I heard that he had selected John Roberts I said, "Great, this is a marvelous choice."

Maybe there's not another John Roberts, but I suspect there are a lot of really good, qualified women and minorities and men in America that could step up to this job.

VERJEE: Do you think this reflects badly on President Bush? Do you think it's a blow to his presidency?

LOTT: You know, it's a difficulty -- temporarily. The fact that it has been dealt with -- in a few days, this will be forgotten. There have been other nominees that didn't make it for one reason or another. The president can completely remove this as a problem by moving as expeditiously as he can to come up with a really strong nomination.

Look, we make mistakes in judgment. We are human beings, even presidents. And I won't even argue that this was a mistake, but the fact is it didn't work out. OK, he'll come up with another nominee, and we'll move on.

VERJEE: Do you want the president to go back to his base, pick someone much more conservative and obviously, as you point out, much more qualified?

LOTT: Look I am a conservative but that was not my problem with this nominee. I was concerned about the breadth of her experience and her qualifications and her abilities.

VERJEE: But do you think that he should go back to his base? LOTT: I think you can probably argue he didn't leave his base. But, yes, a simple answer is he should nominate a strict constructionist conservative. Sure, that's what he is, that's what he ran as as president. He said, "If you elect me, this is the kind of nominee you're going to get." And I'm sure he'll do that.

VERJEE: He should do that and pick a fight.

LOTT: No, no. He should find somebody like John Roberts that is so qualified and conservative that even Democrats say, "Geez."

Look, I voted for a liberal nominees of Bill Clinton because they were qualified by education, by experience, demeanor. I mean, I knew I wouldn't agree with Ruth Bader Ginsburg on the Supreme Court, but she was qualified and so I voted for her. And that's what Democrats ought to do.

The president's going to pick a conservative, strict constructionist lawyer for the Supreme Court. And they should look at: are they reasonable, are they well qualified, are they experienced, what's their demeanor, character -- and vote for them unless there's something really, strongly debilitating.

VERJEE: How soon do you want to see a nominee put forward?

LOTT: I don't think time is critical.

VERJEE: You don't?

LOTT: And more importantly is: Get the right one. If the president could do it in a week or two, that would be preferred -- partially because the Senate would have to go through the process of confirming the nominee. We need to get another nominee ready to go on the bench to take Justice Sandra Day O'Connor's position.

But more importantly, then, whether it's tomorrow or next week is: Find that right horse. Find the right candidate.

I think he needs to maybe consult a little broader and maybe a little more thoroughly.

VERJEE: How so, and in what way?

LOTT: Well, I think everybody was shocked and surprised with this nominee. Would it have been different if had called around and said, "What do you think?" Maybe he did, but I don't know that he did.

VERJEE: Who do you think he needs to consult more broadly with? Who do you think he needs to call around more and speak to?

LOTT: Well, remember, I do think before he moves some time he ought to have a few that he talks to. I mean, there are a lot of good people he could check with that are on the Judiciary Committee, or friends in the Senate that would be willing to give him an honest reaction. I think that's been one of the problems lately. I'm not sure -- I think the president's in a little bit of a cocoon at the White House. He needs maybe some more people there. Maybe he needs to listen a little bit more to some of his friends, and even some people that are willing to tell him something that he doesn't want to hear.

We all run into that problem in Washington. Sooner or later our staff, so determined to protect us, all of a sudden we don't hear the truth about what we're doing -- and I'm including myself in that.

So he knows who he can call and who will give him an honest assessment in our leadership in the Congress and the Senate -- and the House, for that matter -- and good lawyers and members of the Judiciary Committee, and that I think would give him good counsel.

VERJEE: How much pressure do you think is there on the president basically to replace a woman with another woman, or do you think that's not an issue and Alberto Gonzales is still fair game?

LOTT: There will be some pressure for that. I think he should pick the best person regardless of race or sex or religion. But obviously I, too, say, "Look, if he can find a good, qualified woman that would be good."

The image of a replacing Justice Sandra Day O'Connor with a woman, I think, would be very positive. I think he could find a minority, perhaps -- that would be good. Maybe a minority woman.

But that's not the critical thing. If you get the right person, like John Roberts, that will transcend all other considerations.

But if I were the president, I'd try to find a good woman. VERJEE: What impact do you think this will have on the Republican Party itself? It has been in a bit of a disarray with the troubles concerning the CIA leak investigation -- DeLay, Frist, Abramoff.

Does this sort of help or soothe the disarray in the Republican Party?

LOTT: Well, it's kind of like having a sore. When it's healed, it surely feels better.

This has been a little difficult patch, but I really think this, in a way -- I know it'll be well received. And I think that members of the Republican Party, and Americans of all persuasions, will be looking for an opportunity -- wanting to back the president's nominee and help him deal with some of these other issues.

I repeat something I said earlier: We've got three years to go in this administration. We have a lot of other important issues we need to address -- you know, how we finish positively in Iraq, what do we do about border security, what do we do about the energy situation in America and these outlandish prices, what do we do about fiscal responsibility in the federal government? And we need a president who can lead and push the agenda in that area.

So the fact that this distraction and the way it was developing has been set aside, that's good. And Washington -- it's unfortunate that people have to deal with what Harriet Miers has had to deal with, but we will move on and she'll be better off and so will we.

VERJEE: Senator Trent Lott, from Capitol Hill.

LOTT: Thank you.

VERJEE: Senator Trent Lott from Capitol Hill, thank you so much for joining us on AMERICAN MORNING.

O'BRIEN: And let's go to the Majority Leader Bill Frist on the Senate floor.

BILL FRIST (R-TN), SENATE MAJORITY LEADER: ... presents a burden for the White House and our staff that is not in the best interest of the country. As you know, members of the Senate have indicated their intention to seek documents about my service in the White House in order to judge whether to support me. I've been informed repeatedly that in lieu of records, I would be expected to testify about my service in the White House to demonstrate my experience and judicial philosophy. While I believe that my lengthy career provides sufficient evidence for consideration of my nomination, I am convinced the efforts to obtain executive branch materials and information will continue.

O'BRIEN: All right, and just to clarify, he is reading from Harriet Miers' letter here.

FRIST: ... the strength and independence of the three branches of government are critical to the continued success of this great nation. Repeatedly in the course of the process, the confirmation for nominees for other positions, I have steadfastly maintained that the independence of the executive branch be preserved, and its confidential documents and information not be released to further a confirmation process. I feel compelled to adhere to this position, especially related to my own nomination.

Protection of the prerogatives of the executive branch and continued pursuit of my confirmation are intention. I have decided that seeking my confirmation should yield. I share your commitment to appointing judges with a conservative judicial philosophy and I look forward to continuing to support your efforts to provide the American people judges who will interpret the law, not make it.

I am most grateful for the opportunity to have served for your administration and this country. Most respectfully, Harriet Miers.

Mr. President, those are her words. And I think very direct -- as I mentioned, I did have a chance to talk to the president just moments ago. He says, again, that he accepted this withdrawal. And Harriet Miers will continue as White House counsel, of course. And I believe that we can expect another nomination in the very near future. And I'll be talking to Chairman Specter a little bit later this morning. Mr. President, I yield the floor.

O'BRIEN: Senate Majority Leader Bill Frist on the Senate floor.

And just to bring you up-to-date if you're just tuning in, the 24-day nomination of Harriet Miers to rise to the Supreme Court is now over. She withdrew her nomination, a letter to the president which you heard almost in its entirety, read by Senator Bill Frist just a few moments ago. Specifically mentioning the potential request by senators on the committee, the Judiciary Committee, for specific documents relating to her tenure as the White House counsel, indicating that she was concerned that those documents would become an issue. It might ultimately violate privileged communication between the president and the White House counsel.

But as we have been saying all along, there were many other issues in play here. Concern -- ideological concerns on the right base. Concerns that Harriet Miers would not pass the litmus test on certain social issues, specifically Roe Versus Wade. And also issues relating to her resume. Quite frankly, a relatively thin resume as it relates to somebody to rise to the high bench in the United States.

And all those issues, coupled with the general political environment, came crashing down. And this nomination is now over. So once again, Harriet Miers, no longer a nominee for the U.S. Supreme Court.

We have got this covered just about every way you can imagine. We have reporters all throughout Washington and right here, checking into this. Suzanne Malveaux, screen left, at the White House. We'll be with her in a moment. Candy Crowley and John King, both senior correspondents for us in Washington, as well. We have Ed Henry on Capitol Hill, who will be checking in just a few minutes. Jeff Toobin, our senior analyst, and Jeff Greenfield, our analyst as well, who will be weighing in and putting this in the proper context for you.

Let's start off for those who are just tuning in. Suzanne Malveaux, you are in what the reporters call the gaggle, which is an off-camera briefing between the White House public relations arm and reporters every morning. What was conveyed to you this morning?

SUZANNE MALVEAUX, CNN WHITE HOUSE CORRESPONDENT: Well, essentially that the president was deeply disappointed, and that they made a point to say that it was about the process, about the Senate, not necessarily about those outside voices that he's been talking about, His conservative base, but obviously that has hurt the president as well. We have been told that it was 8:30 last night that Miers made up her mind, that she called the president when he was in the residence and he expressed his deep disappointment in all of this, and that it was this morning at about 8:30 when she walked into the oval office with that letter.

What is very strange, Miles, about this whole thing is when we look forward at what will happen next. We know that the president is not necessarily going too make a public statement today, that he's already issued that letter.

But what's going to happen is that Miers is going to go back to her old job, that's what we're told, is that she will continue to serve as White House counsel, but she will also be the one who will continue to vet those nominees for this process. So a very strange position that Miers is in, as well as the president -- Miles.

O'BRIEN: Well, she certainly has experience and knows what's on the minds of senators and the kind of questions they're interested in, doesn't she?

MALVEAUX: Well, absolutely. And we heard -- this is not totally unexpected, because we actually heard just last week, you remember in the Rose Garden, when the president drew the red line saying he was not going give up those privileged documents, and that was a signal, perhaps a line in the sand, if you will, that that is something that conservatives could push the White House on. They could have irreconcilable differences, as we heard about this morning, and that that might be a way to withdraw her nomination.

O'BRIEN: Suzanne Malveaux at the White House. Let's go back over to John King.

John King, you get the sense that conservatives are emboldened in ways they never have been before since the 2004 election, and it is their belief, and when you look at the numbers there is a lot of statistics to back it up, but they pushed the president over the top, the bill has come due, and they're going to insist on a nominee that passes a social litmus test.

KING: Well, the president will say there are no litmus tests, Miles. But it's a very interesting moment. I mean, this is a president who became the next Ronald Reagan, if you will. When he ran for president, won that contested election, many thought he should run to the middle in terms of his policy agenda. He came out with the big tax cuts. He came out with his faith-based organization. So the social conservatives, the economic conservatives, they were in love with the presidency at the beginning. I think there's a great irony. It was just last week, if my memory is right, I was traveling in New Orleans and then down covering Hurricane Wilma, but the president made a pilgrimage out to the Reagan Library.

But remember, if you remember those days -- and those of us who have all of the gray hair, we do -- Ronald Reagan was the hero of the conservative movement, but he consistently disappointed them, when he would speak to the pro-life rallies, the anti-abortion rallies, but his picks for the Supreme Court, Anthony Kennedy, Sandra Day O'Connor, profoundly disappointed the conservative movement. And in way, what the conservatives were saying, many of those activists were saying, is we were burned before by a guy we thought was our hero, we are not going to be burned again. And they very aggressively challenged Harriet Miers when the president came out, in part because she has no history, as Senator Lott just said and in part because they have suspicions about Judge Roberts as well, now Chief Justice Roberts as well. They're worried about him, but because of his impeccable credentials, they couldn't challenge him. So once they had an opportunity, they picked a fight.

O'BRIEN: Of course let's move on over to Candy Crowley, speaking about Ronald Reagan. Ronald Reagan had to deal with a Democrat Congress. That was a little different time there.

CROWLEY: Absolutely. And that's what makes this fight interesting, is that it did come from within. It did come at a really bad time. We are, believe it or not, about to start into an election year. It is also just bad timing for the president in general. He has all of these things that are coming to bear, in addition to great challenges for the country. It will be interesting to see -- my guess is that you will see a pick rather quickly.

And the sort of glass half full, Miles, one of the things I think you can look at the fact that this coming today, the withdrawal of Harriet Miers, probably becomes not much news by tomorrow, if indeed the special prosecutor has anything to say. It wipes it off the board, thus giving the president a clean slate to pivot next week from the indictments to, and now I've got this great Supreme Court nominee. So I'm not saying they went that far to plan it this way in timing, but the timing certainly the president can use it to his advantage in what has been the worst times in his presidency.

O'BRIEN: Candy Crowley, thank you very much. Let's go back to the White House Lawn.

Ed Gillespie is there, Republican political operative who was in the middle of -- you don't like operative, huh? It's like operator, smooth operator, and political strategist.

You like that one better?

ED GILLESPIE, REPUBLICAN STRATEGIST: If I had to choose, yes, that would be better.

O'BRIEN: All right, political strategist Ed Gillespie with us.

Ed, you were in the middle of this in helping sell this nomination, and now it's over and the White House has got to be red- faced about it. Looking back on it, what was the big mistake here?

GILLESPIE: Well, I don't think there was a mistake, and we're not red-faced at all. I'm proud of having helped a very good and qualified woman in Harriet Miers in this process. She, I think, rightly and in a principled manner came to the conclusion that there was about to be a conflict between her role as nominee and the principal she's espoused as White House counsel and counsel to the president, which is to say that the advice she was giving to President Bush would be required to give to the Senate Judiciary Committee since her experience as White House counsel was con of the qualifications for the job, and that would compromise the integrity of presidential prerogative and the ability for staff to have a candid conversation with any future president.

O'BRIEN: All right, you are as good at spin as anybody, but I don't think a lot of people are buying that today, because the fact of the matter is, the minute that nomination came out, you knew those documents would come into play. And we've been talking to people on Capitol Hill who say they weren't going make those documents front and center; they were just more curious about what she was all about, and thus some tough questions lied hand. So it seems to me there were other issues at play here.

GILLESPIE: Well, look, the fact is I've been talking to people on Capitol Hill as well, senators, because that's where our focus has been. We felt very good about the confirmation process and where Harriet Miers was in that. She was preparing very intensely and looking forward to the hearings and looking forward to the opportunity speak in her own voice and characterize her own thoughts about the proper role of the judiciary in our system of government and the role of the court, rather than have others speak for her or characterize it for her, often in a wrongful manner.

But the fact is, having talked to senator, it was clear to me that because she was a real world litigator and didn't have a string of rulings on a bench and in the appellate court, that her advice to the president and the role she played as White House counsel were going to be very important in their consideration of her confirmation and their vote. And as that became more and more apparent, Harriet Miers in a very principled and selfless manner put the issue of the presidency and the president ahead of her own self-interest as nominee, and for that I have immense admiration of her.

O'BRIEN: Ed, I called you a political strategist, and that means you understand strategy well.

GILLESPIE: Thank you.

O'BRIEN: And you must have seen that one coming before this nomination came out, right? GILLESPIE: I'll tell you, Miles, the process has become much more political than it's been in the past. We obviously understood that her role as White House counsel was one of the qualifications, and as to, you know, whether or not we understood the intensity with which the documents would come into play, did we anticipate that? You know, maybe we didn't anticipate the intensity with which they would come into question and into demand.

O'BRIEN: Let's talk about what happened in the right flank of your party. It must have surprised you. Clearly you wouldn't have offered up the nomination if you knew there would be such an ideological fight in all of this. How disappoint are you in your own party?

GILLESPIE: Well, people want to have a vigorous debate, and I think we would have had a vigorous debate, because Harriet Miers is someone who shares the president's philosophy of judicial restraint, and would have made that case forcefully in the confirmation hearings. I understand the desire to talk about the proper role of the court and to talk about issues like striking "under God," from the Pledge, or whether or not I as a parent should be notified in the event of my teenaged daughter seeking an abortion, and issues like that that people care deeply about. And those kinds of questions and those kinds of issues, given the role of the court in our society today, are critical, and they shouldn't be debated, and I think we would have had those kinds of debates and those discussions in the Miers process. We'll have them inevitably in the process with whoever comes after Harrier Miers' nomination.

O'BRIEN: Ed, I've got Jeff Greenfield, our political analyst. Analyst meets strategist. He's got a question for you.

JEFF GREENFIELD, CNN POLITICAL ANALYST: I used to have one of those before I became a virgin.

Ed, let's talk about...

GILLESPIE: I knew you before you were a virgin, Jeff.

GREENFIELD: Let's talk about timing here. It seems to me that if -- the White House is under siege on many different fronts, particularly from its base. If you want a headline that's going to shore up the conservative base on the eve of what may be troublesome news to the White House, let's be as candid as humanly possible on the air. Isn't this a wonderful headline to have for the conservative base tomorrow, when and if bad news such as indictments come out?

GILLESPIE: Well, Jeff, I appreciate your analysis of it, but this is not about headlines; this is about the Supreme Court of the United States and a very important nomination. It's also about a friend of mine Harriet Miers, who I think acquitted herself incredibly well in this process, and the president and his team are going to focus on who is another qualified nominee to serve in this very important role as associate justice of the Supreme Court. That's where the focus is. That's where it ought to be, and that's where it's going to remain. GREENFIELD: Ed, the Mayor LaGuardia used to say, I don't make many mistakes, when I make one it's of beaut. Do you think maybe the president is preparing, at least silently among his friends, to echo Mayor LaGuardia?

GILLEPSIE: I have not spoken with the president. I know he very much regrets Harriet's decision, but admires it and admires her standing up for the same principles she has espoused as White House counsel, putting the interest of the president and the presidency first.

O'BRIEN: Ed Gillespie, Republican political strategist. Been right in the middle of this whole thing. Thanks for your time. I know you go to move on to other things. It is a beaut.

GREENFIELD: Ed's very good, as you pointed out.

O'BRIEN: Not in the chink in the armor, by the way.

GREENFIELD: But this is kind of like an opera singer who, when they're stabbed they sing. The fact of the matter is that the firestorm on the right from a -- directed as a president who has been loyal to his conservative base, even before he got elected president, when he picked Dick Cheney as Vice President. That was Karl Rove's first instruction, remembering from the first Bush. First thing, don't lose your base.

And the firestorm on the right -- you know, columnists, senators, activists. "The National Review" was doing a petition drive. "The National Review," the founder of the conservative intellectual movement in the country 50 years ago, saying this woman has to withdraw. And one columnist, Charles Krauthammer, provided exactly this exit strategy in a column a couple weeks ago. Use the papers as an excuse. We don't want to jeopardize presidential executive privilege.

VERJEE: So, OK. So with this makes the fractures and the furious base happy. As you said, you know, that's the headline. But does the president then go back to his base and select someone extremely conservative, make them happy? Don't rock the boats?

GREENFIELD: You know, what do they say in court? Calls for speculation on the part of the witness. If he wants a fight, if he wants to put in, for instance, Janice Rogers Brown, who just got a seat on the court of appeals, one of the more conservative justices you can imagine. Priscilla Owen, Edith Clement, Edith Jones, Mike Delidthorpe (ph). You're going to hear all these names.

But what we're going to find out about this is whether or not this president now says OK, conservatives, I need you. Or whether or not he's going to resort to another kind of character trait the president has, which is to dig in and give them maybe an Alberto Gonzales. That's the interesting question in the days ahead.

What do I think is, you know, the secret of great comedy, timing? The fact that indictments may be coming today or tomorrow I think had a lot to do, I'm sorry, Ed Gillepsie, I think it had a lot to do with the fact that they wanted this boil lanced, they wanted it now and they wanted this story out there to make conservatives happy.

VERJEE: How soon does Bush need to nominate someone?

GREENFIELD: Well, considering they've gone through a vetting process that ended 24 days ago, I think, if that's when Harriet was nominated, they should be pretty well up on who's available.

VERJEE: Does has this happened before?

GREENFIELD: We've had nominees withdrawn, but never under these circumstances. The last two I can remember, when Abe Fortis, Justice Fortis, was nominated for chief and his nomination was stalled by conservative Republicans and Democrats because of ethical questions, Lyndon Johnson had to pull that nomination back.

And then after Robert Bork was defeated in 1987 in a confirmation vote, he nominated Judge Douglas Ginsburg -- no relation to Ruth Bader -- who was withdrawn because it was learned that he smoked marijuana I guess after the age limit when it was OK to do that.

I don't ever remember a nominee being offered up by a president who was withdrawn in the face of such ferocious opposition from that president's base.

O'BRIEN: Yes. And that is the headline to remember, as well, on this one. Let's -- Jeff Toobin is back on the line with us. And, Jeff, as we've been saying, Harriet Miers' job now is to go through the short list and pick her successor as nominee.

Let's go through the short list that you have. Of course, we don't know precisely the names that she has in front of her, but it's safe to say the three or so names we have right here are among them. Let's go through it. First of all, Priscilla Owen, tell me about her.

TOOBIN: Priscilla Owen was recently confirmed to the United States Court of Appeals for the Fifth Circuit. She formerly served on the Texas Supreme Court with Alberto Gonzales. A very conservative, frequently dissenting, because a conservative court was not conservative enough for her.

Her nomination was held up for over a year in the Senate because the Democrats were filibustering her, and in the compromise engineered by the so-called Gang of 14 to avoid having the Senate meltdown over the issue, her nomination was pushed through. So she's barely been a federal judge for more than a few weeks. I don't think she's issued any opinions yet, but she's certainly one possibility.

O'BRIEN: Number two on your list, Janice Rogers Brown.

TOOBIN: Janice Rogers Brown, a young-ish African-American woman, was the other person confirmed as a part of the deal on filibusters. She comes from the California Supreme Court. If anything, even more conservative than Priscilla Owen. Very outspoken in a series of speeches. Has compared the New Deal to socialism. Very outspoken, very popular with the base of the party.

The third person on my list, Michael Luttig, was -- has been a federal appeals court judge for more than a decade now with -- appointed by the first President Bush, I believe. He was a Justice Department official who shepherded Clarence Thomas' nomination through the process -- through his tumultuous process. He was -- now, I have to admit some confusion here. He was either the best man at John Roberts wedding or John Roberts was the best man at his wedding. But suffice to say, they're close friends. Again, very conservative. Not quite as outspoken as the other two.

As Jeff said earlier, those three would be very pleasing to the base of the party, the people who rebelled over Harriet Miers. The fourth name on the list is Alberto Gonzales, who would, of course, be the first Hispanic justice. But he is someone who has some moderation in his history.

When he was on the Texas Supreme Court, he issued some opinions that suggest that he was sympathetic to abortion rights for women and affirmative action. He would get some of the same from protests from the base of the party, but the qualifications issue, which so much dogged Harriet Miers, would be less of an issue with Gonzales, because he, after all, has been a judge on the Texas Supreme Court, has been attorney general.

O'BRIEN: Well, let me ask you this, Jeff Toobin. Do qualifications, does a thick resume, inoculate you against that ideological fight which lies ahead? It seems to me the ideologues are going to be upset with Gonzales regardless.

TOOBIN: I think that's right. But the question is, would they be upset enough to get 51 votes against him? And I think Alberto Gonzales is a lot more politically appealing candidate. You know, President Bush naming the first Hispanic to the court, an ethnic group that the Republican party is ardently courting, that would be a big deal. And I think to see him sabotaged by his own party, if that's what would happen, is something that I think some people in that party will think twice about. But, as this episode has illustrated, the right wants this seat really badly and they'll fight to get it.

GREENFIELD: Jeffrey, it's Greenfield. Having suggested Gonzales, let me now raise this problem. Doesn't he have the same problem with executive privilege and papers that Harriet Miers had? I mean, if that's why she's withdrawn, how can they put him up without raising precisely the issue they claimed was the reason for her withdrawal?

TOOBIN: Very good question, especially since he held precisely the same job that Harriet Miers held now for the entire first term. He was the White House counsel. So again, that would be a -- that would be courting a fight with the Senate. But I do think politically he's a lot more appealing candidate. And the president may be willing to take on that challenge if he really wants him on the court.

VERJEE: Jeff Toobin, it's Zain. Do you think it would be a problem to pick someone who's a friend, who's at the White House? Would he be then accused again of cronyism?

TOOBIN: I think he would. I think the list of even conceivable candidates who work in the White House is pretty much exhausted with Harriet Miers. The Alberto Gonzales pick would raise that issue to a certain extent, because he was not only President Bush's White House counsel in the first term, he was his lawyer in Austin when he was governor. So there is a long tie there. But I think the qualifications issue would not be as dramatic. It would be much more of a political fight about Gonzales than it would be one about qualifications.

O'BRIEN: Jeff, when the President announced Harriet Miers' nomination 24 days ago -- what a 24 days it's been for this nomination -- one of the things he mentioned was diversity and how important he believes that to be on the court.

So as I look at this list and I look at ideological issues and I look at diversity issues, Janice Rogers Brown comes right to the front of the list in my view. If you were a betting man and it's probably not legal to be doing that, so we probably shouldn't be doing that -- we're talking about the Supreme Court -- nevertheless, would you say that she would be the leading contender?

TOOBIN: I wouldn't, to tell you the truth, because I think her record is so incendiary that she is one person who really might prompt a successful filibuster from the Democrats. However, I do think that there will be lot of pressure that the president feels to pick a woman. After all, you know, his wife, the first lady, has said that she would like the O'Connor seat to go to a woman. Justice O'Connor has said she would like the seat to go to a woman.

So I think Priscilla Owen or other name that have surfaced, Edith Jones, also from the Fifth Circuit; Edith Clement, also from the Fifth Circuit Court Of appeals. These names will get back into circulation.

My reporting from the White House was, once Chief Justice Roberts was named to the Rehnquist seat, the president almost exclusively focused on women for this seat. And I expect women will get a lot of consideration, although perhaps not exclusively.

O'BRIEN: All right. Thank you very much, sir.

To Monsieurs Toobin, Greenfield, King, Crowley, Madame Crowley, Malveaux and Henry. Sounds like a law firm there. All of them providing us excellent coverage. But it's not done. We're done but the coverage continues.


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