Better Luck Next Time

The news only worsened as the day wore on. After a series of private soundings and informal head counts in the Senate, it was clear to Harriet Miers that her chances of sitting on the Supreme Court were increasingly slim. Not an impossible task, but one that demanded a long, hard slog. So a tired Miers picked up the phone last Wednesday and called her old client in the First Family's residence, close to bedtime at 8:30. "I'm honored you considered me to do this," she told the president, "but it's time for me to get to work on my replacement."

Miers may have ended her brief and bloody 24-day career as a Supreme Court nominee, but she's hardly out of work. Last weekend she was holed up with President Bush and chief of staff Andy Card at Camp David, picking out the next nominee--the third bid to fill the critical swing seat of Sandra Day O'Connor. As White House counsel, Miers is once more heading the vetting process that so dismally failed her. Nothing went right for Miers in her brief Supreme Court run. Conservatives distrusted her; senators sent her Judiciary Committee questionnaire back to be done over; many in the middle worried about her thin experience with constitutional law. Now, with newly empowered rebels on the right, and the same old snipers on the left, Miers and Bush must be both conservative and competent in their selection of the next high-court hopeful.

Her own ill-fated nomination wasn't the first time Bush has placed Miers in an impossible position that raised questions about his judgment and her abilities. For 18 months Miers served as deputy chief of staff with special responsibility for policy, pulling together all the threads of the White House agenda. It was not a happy experience. Senior White House officials say Miers was playing out of position, and to some extent she'd been set up to fail. "Her comfort zone is law," says one senior Bush aide, who declined to be named so as to talk about sensitive personnel subjects. "She's the first to admit that she's not a public-policy expert, and she had to spend a lot more time down in the details of issues, when people were used to a faster pace." Bush now recognizes that Miers is much more comfortable as a White House lawyer than as policy-wonk-in-chief. Yet he still seriously misjudged her for a second time as a Supreme Court nominee.

Whether she had the skills to serve on the nation's highest court (and the White House insists she does), Miers could not act as both candidate and campaign manager. Her staff was partly diverted onto other tasks, such as pulling papers on another debacle--the response to Hurricane Katrina. But that doesn't fully explain why they made so many errors in vetting Miers herself. On Capitol Hill, some GOP lawmakers and aides suggested she'd been unfairly treated during the process, especially by conservatives who refused to wait until her hearings to draw blood. Others squarely laid the blame on the White House. "It seemed they really had no idea what kind of nominee they were pushing," says one Republican Judiciary Committee aide, speaking anonymously to avoid upsetting the White House. "What I'll always wonder is, if Miers had vetted a nominee like herself, would she have let that person get as far as she did?" Surrogates felt wary about speaking on her behalf as news trickled out about her past positions, especially on social issues. The tipping point came with the emergence of a 1993 speech Miers delivered to businesswomen in Dallas. Miers decried what she called two systems of justice--one for the rich and white people, one for the poor and minorities--and supported the concept of "self-determination" when religion and law collided. To social conservatives, it sounded as though she were pro-choice and anti-school prayer--the very kind of stealth liberal they have feared since George H.W. Bush appointed David Souter.

Her personal performance underwhelmed almost everyone. Inside the administration, the private practice sessions, or murder boards, left those present wondering if Miers needed to learn how to field questions when testifying before Congress. And in the Senate, there was widespread disappointment with her face-to-face meetings. White House officials say the critical factor was the bipartisan pressure for Miers to hand over documents showing her confidential advice to the president--a red line they refused to cross. Yet the bad news really came from normally reliable senators like John Cornyn of Texas and Jon Kyl of Arizona. Bush started his day on Wednesday with a meeting of the GOP leadership in the Oval Office, where Senate leader Bill Frist said Miers faced "a tough battle" but assured everyone he was making progress. For the rest of the day, Andy Card and senior adviser Ed Gillespie consulted quietly with other senators while the White House legislative team conducted an informal poll. The results suggested Miers could squeak through, but the process would not be pretty. When Miers called Bush to withdraw, the president told her she had "every right to be bitter and angry." Miers declined the chance to vent, but kept her decision secret even from the White House staff handling her paperwork. Senate officials received her corrected and updated questionnaire shortly before midnight, three hours after she quit.

Miers must now absorb the lessons of her failed bid in steering her successor through the Senate. That doesn't necessarily mean a Ph.D. in constitutional law. Social conservatives will be looking for greater assurances about issues like abortion after Miers's position came into question. But the White House draws a simpler lesson. "What we have to do is prove we can put up a well-qualified candidate whose credentials are not going to be questioned and can begin with a level of momentum that can't be stopped by people on either side," says one senior Bush adviser, who preferred to speak anonymously about the president's decision making. They'll need to move quickly. With the holiday recess fast approaching, the next nominee may end up at the mercy of outside groups that are spoiling for an epic battle.

Miers herself seems happy to suit up for the next fight. But among her staff, the energy levels were low. The day after Miers threw in the towel, a group of lawyers from her office met for lunch at a nearby French bistro. "They were exhausted and relieved," says one former administration official familiar with the private gathering. "They were in such a foxhole and taking so much fire." Now they and their boss have a chance to climb out of their hole with a new nominee. Their challenge: to make sure their allies aren't shooting at them this time.