Bush Risks Calls of Cronyism in Selecting Friend

By Janet Hook

Oct. 4, 2005 12 AM PT

Times Staff Writer

WASHINGTON — Even with Washington awash in controversies involving allegations of political cronyism, President Bush was undeterred in choosing a close friend and longtime advisor for the Supreme Court.

The nomination of Harriet E. Miers, who has worked for Bush for more than a decade and was once his personal lawyer, was in keeping with Bush’s management style of promoting trusted advisors to positions of broader influence, such as Cabinet posts.

Although past presidents often named close friends and associates to the court before the 1970s, Bush is the first president to do so since Lyndon B. Johnson made two ill-fated nominations from his inner circle, among them that of Abe Fortas.

For Bush, the perception of possible cronyism is especially risky because it comes at a time when the White House has been accused of putting under-qualified political associates in top positions throughout the government -- such as at the Federal Emergency Management Agency, where director Michael D. Brown quit after coming under fire for his handling of the federal response to Hurricane Katrina.

The cronyism charge was one of the first lines of attack seized by critics of Miers -- both on the right and the left -- who were frustrated by the appointment of a person whose views and record are little known.

“Michael Brown taught us that vital national positions must be filled with qualified candidates, not political friends with little experience,” said Eli Pariser, executive director of the liberal MoveOn.org Political Action. “President Bush is asking us to gamble on his personal lawyer and political appointee.”

Manuel Miranda, a conservative lobbyist active in promoting Bush’s judicial nominees, contended that “the president has made possibly the most unqualified choice since Abe Fortas.”

Bush administration officials spent much of the day contending that it was Miers’ strong legal record -- not her relationship with Bush -- that got her the nomination.

“He has known her for some time now, but the decision was based on who was the best person to fill this vacancy,” said White House spokesman Scott McClellan.

“Look at her record: Her record is one of being a trailblazer in the legal profession.”

Vice President Dick Cheney, speaking on Rush Limbaugh’s conservative talk show Monday, said, “The idea that Harriet is selected on the basis of cronysim makes no sense at all.”

Whatever her legal credentials, Miers has solid bona fides as a Bush loyalist. Former speechwriter David Frum, writing of her recently in the National Review magazine, said, “She once told me that the president was the most brilliant man she had ever met.”

Her ties to Bush date to his 1994 campaign for Texas governor. She was a key member of Bush’s small inner circle of advisors with roots in Texas, many of whom were dispatched from the White House staff to Cabinet positions at the beginning of his second term.

In moves that underscored how much Bush prizes longtime loyalists, he nominated Margaret Spellings, another former Texas aide and White House policy advisor, as Education secretary; sent national security advisor Condoleezza Rice to head the State Department; asked White House counsel Alberto R. Gonzales to become attorney general and tapped Miers to take Gonzales’ place.

In choosing Miers for the Supreme Court, Bush is reverting to a practice that was once quite common for presidents.

“With some exceptions, being a close friend and personal acquaintance of the president was a virtual prerequisite for the Supreme Court up through the 1960s,” said David Yalof, a professor at the University of Connecticut who has written a book about how presidents select Supreme Court justices.

President Franklin D. Roosevelt knew all his nominees personally, and was especially close to Felix Frankfurter. President Truman was a close friend of all four of his nominees. Among them were two without judicial experience and a buddy from his years in the Senate, Sherman Minton.

Byron R. White worked on the 1960 presidential campaign of President Kennedy, who named him to the court in 1962.

But that practice waned after President Johnson suffered an embarrassing defeat in the Senate. He nominated Fortas, a close friend, to the court in 1965 and won his confirmation. But when Johnson tried to promote him to chief justice in 1968, he met charges of cronyism.

Johnson was forced to withdraw the nomination in the face of strong opposition from Republicans and conservative Democrats. He also then withdrew his nomination of federal judge Homer Thornberry, another Texas political associate whom he had tapped to succeed Fortas. In 1969, Fortas resigned from the court.

Ever since, Yalof said, presidents have shied away from naming people they knew personally.

Kermit Hall, a constitutional law scholar who is president of the State University of New York at Albany, said Miers’ appointment was extraordinary because she had been deeply involved in the search for Bush’s court nominees. “No one can look at this appointment and say that the president is turning to the very best person he could find,” Hall said.

“To turn to someone so deeply enmeshed in the [judicial] selection process, then elevate them to the position they have been working to orchestrate is, I think, pretty much without precedent.”

Yalof contends that it is not an intrinsically bad practice to put political and personal associates on the court, noting that Frankfurter was considered one of the court’s more distinguished jurists.

“Sometimes it’s a way to get terrific people on the court in a hurry,” Yalof said. “Cronyism itself is a charge that only sticks when it is followed by an undistinguished career.”

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Previous judicial experience: None

Harriet E. Miers is not the first Supreme Court nominee without judicial experience. More than 35 justices had no experience on the bench before joining the high court. A look at a few, who nominated them, how many years they served on the court, and what they did before being chosen for the highest court in the land.

William H. Rehnquist

* Richard Nixon

* 1972-2005

* Clerked for Justice Robert H. Jackson; civil litigator in Phoenix; assistant U.S. attorney general in the Office of Legal Counsel when nominated.

Lewis F. Powell Jr.

* Richard Nixon

* 1972-1987

* Practiced law in Virginia; served on local and state boards of education; president of the American Bar Assn.

Byron R. White

* John F. Kennedy

* 1962-1993

* Played professional football; clerked for Justice Fred Vinson; practiced law in Colorado; deputy U.S. attorney general when nominated.

Arthur J. Goldberg

* John F. Kennedy

* 1962-1965

* Practiced law in Illinois; helped the merger of two major labor groups: the American Federation of Labor (AFL) and the Congress of Industrial Organizations (CIO); secretary of Labor when nominated.

Earl Warren

* Dwight D. Eisenhower

* 1953-1969

* Served as California attorney general and Alameda County district attorney; ran for vice president on the 1948 Republican ticket; California governor at time of nomination.

Tom C. Clark

* Harry S. Truman

* 1949-1967

* Served as civilian coordinator for the forced evacuation of Japanese Americans from the West Coast during World War II; U.S. attorney general at time of nomination.

William O. Douglas

* Franklin D. Roosevelt

* 1939-1975

* Yale University law professor; advisor to President Franklin D. Roosevelt; chairman of the Securities and Exchange Commission.

Felix Frankfurter

* Franklin D. Roosevelt

* 1939-1962

* Assistant U.S. attorney in Manhattan; served in the War and Labor departments; professor at Harvard Law School.

Louis D. Brandeis

* Woodrow Wilson

* 1916-1939

* Renowned attorney; leader of the Boston bar.