THE RIGHT: WITH FRIENDS LIKE THESE
Michael Isikoff

Newsweek
Oct 17, 2005 Issue

The cheerleaders for Bush’s judicial pick found little to cheer.

After Sandra Day O’Connor resigned from the Supreme Court in July,
the White House reached out to an informal network of conservative
lawyers and academics to help build support for the next nominee. The
group of about three dozen worked smoothly during the confirmation
battle over John Roberts, plotting strategy in conference calls with
administration officials and penning newspaper op-eds. But last
week members of the "brain trust," as one called it, rebelled. In
a string of sometimes testy e-mail exchanges among themselves, the
lawyers agonized over the selection of White House counsel Harriet
Miers. They also debated vigorously whether they should go public
with their dismay, or simply say nothing.

"We are keeping quiet. And hiding from the media," wrote Abigail
Thernstrom, the Bush-designated vice chair of the U.S. Civil Rights
Commission and a prominent critic of affirmative-action policies, in
an e-mail copied to other members of the network. "As for undermining
trust in the president, I am afraid he has accomplished that all on
his own–without any help from us." (Asked for comment last week,
Thernstrom said she was upset that a "private e-mail exchange ends
up in the news media.")

The e-mails, copies of which were obtained by NEWSWEEK from one of
the participants, illustrate the depth of conservative angst over
the Miers selection. Many on the e-mail trail fretted about their own
"credibility" if they publicly took up the cause for Miers, who seemed
to lack the credentials they value. "It no longer matters whether she’s
the second coming of John Marshall; the cronyism charge has stuck,
bec. [ sic ] it’s so obviously true," wrote Michael Greve, a legal
scholar at the conservative American Enterprise Institute. Greve
wondered what was next. Would Bush, he asked, replace Fed chair
Alan Greenspan with "a young lady in the basement of the West Wing
who did a terrific job on the TX Railroad Commission [and was the]
first Armenian bond trader in Dallas…"

Others stuck by the president. George Terwilliger, a former top Justice
Department official who worked for the GOP on the 2000 Florida election
battle, said that "unless it does violence to one’s conscience, I
would respectfully suggest that we suck it up and show our support"
for the administration.

Even so, some of the most biting criticism came from prominent
Washington hands who have zealously defended Bush in the past–but who
have been conspicuously silent about Miers. One, Michael A. Carvin,
the lawyer who argued the president’s case in Bush v. Gore before
the Florida Supreme Court, was riled by a newspaper article about
Miers. The story reported that Miers had once been quoted saying she
wouldn’t belong to the Federalist Society, an influential conservative
legal group, because she viewed it as "’activist’ and ‘partisan’." In
an e-mail to the group, Carvin–who did not respond to repeated
calls for comment–wrote, "This is becoming more embarrassing as
every day passes."