COMMENTARY: JOHN FUND’S REPORTING WAS KEY FACTOR IN FAILURE OF MIERS NOMINATION by Tom Pauken
by Tom Pauken    Mon, Oct 31, 2005, 02:40 PM

As self-promoting "conservative" pundits like Ann Coulter rush to take credit for Harriet Miers’ decision to withdraw as a nominee to the Supreme Court, John Fund (a columnist for the Wall St. Journal) made the factual case as to why the Miers nomination was not a good choice.

Fund started out with an open mind on the Miers nomination like most conservatives who didn’t know Miers. He was willing initially to give President Bush the benefit of the doubt. Fund’s opinion of Miers quickly changed as he looked into Miers’ background and record, both in Texas and Washington. Once Fund waded into the debate with an opinion piece for the Journal on October 10th entitled "Miers Remorse", conservative opposition to Miers began to build. Throughout the course of the debate over Miers, John Fund did the difficult grunt work of a good investigative reporter. He proceeded to make a powerful case as to why the Miers nomination was fatally flawed and destined to be withdrawn.

Meanwhile, Coulter wasn’t helping matters for those opposed to the Miers nomination with her catty, personal attacks on Miers and her cheap shots denigrating SMU Law School where Harriet got her law degree. That is the type of approach which tends to get the President’s back up and make him even more resistant to doing what he had to do in the end – which was to scuttle the Miers nomination.

Fund’s first column of opposition emphasized Andrew Card’s role in the selection of Miers. Card has never been forgiven by conservatives for pushing David Souter’s nomination to the Supreme Court when George Herbert Walker Bush was President. That Miers might turn out to be a female Souter was alluded to by Fund in the quote from a Texas lawyer who knew Harriet well: "she is unrevealing to the point that it’s an obsession." Fund also talked to Dallas conservatives who had known Harriet during her service on the Dallas City Council and viewed her as a liberal back then. Dallas liberals, meanwhile, who had worked with Harriet on the Council during the same period, were enthusiastic about her nomination. The last thing conservatives wanted was a female Souter on the Court.

Fund’s October 13th column entitled "How She Skipped Through: Harriet Miers Nomination Resulted from a Failed Vetting Process" was the beginning of the end for the Miers nomination. After that column, it was only a matter of when – not if – the Miers nomination would be pulled. Fund did a very thorough examination of how the "vetting" process had broken down in the Miers selection process and how there was also a conflict of interest in the way the Miers nomination was reviewed by the counsel’s staff for possible problems. Normally, the White House Counsel would oversee the background investigation of any major Presidential nomination such as this one to determine whether there might be any conflicts of interests or other problems which might make the selection inappropriate prior to the actual nomination of the individual. In this case, however, Miers couldn’t investigate herself since she was the nominee. So, that process was left up to Miers deputy counsel, William K. Kelley, who (according to Fund) had an inherent conflict of interest in the role he was supposed to fill. The Bush Administration would have better advised to go outside and have a White House Counsel who had served in a previous Republican Administration do the "vetting".

Fund’s first bombshell came with his column in the October 16th edition of the Wall Street Journal in which Fund reported on a conference call Karl Rove and two sitting Texas Judges (Ed Kinkeade, a U.S. District Judge in Dallas and Nathan Hecht, Harriet’s friend and a Texas Supreme Court Justice) had with prominent conservative leaders, including James Dobson.   Dr. Dobson already had stated publicly that Karl Rove had given him assurances regarding Ms. Miers’ vote on the abortion issue. According to Fund, someone on the conference call asked the two Texas Judges what their personal knowledge was as to whether they believed Miers "would vote to overturn Roe v. Wade." "Absolutely," said Judge Kinkeade. "I agree with that," said Justice Hecht, "I concur". That was reported by Fund based on information he had received from a participant or participants on that call. It is highly doubtful that Rove, James Dobson, Judge Ed Kinkeade, Justice Nathan Hecht, and other participants on that call would have enjoyed being hauled down before the Senate Judiciary Committee and asked to discuss the details of that conversation under oath.

Finally, the dam broke with the October 21st column by John Fund entitled "Lotto Trouble". Fund recounted the dueling battle between Jerome Corsi of Swift Boat Veterans for Truth fame and Ben Barnes, a Texas Democratic politician and former lobbyist for GTECH. Barnes had secured the lottery contract when the Democrats were in power in Texas and got it extended when Bush was Governor. In a series of articles for WorldNet Daily, Corsi – a conservative journalist who had been involved in the campaign headed by Houston attorney and Vietnam Veteran John O’Neil that questioned Kerry’s service in Vietnam and his anti-war activities thereafter – asserted that Barnes had gotten an extension of the Lottery contract for GTECH without competitive bidding during Bush’s tenure as Governor of Texas by promising not to reveal that Barnes had used his influence as Speaker of the Texas House to get young Geroge Bush into the National Guard in order to avoid having to serve in Vietnam.

Fund’s reference to the Corsi stories gave Corsi’s allegation of a "quid pro quo" that Miers had gone along with as head of the Lottery Commission, greater national exposure. Fund added an important element to the story however, by revealing that Barnes – a major fundraiser for the Democrats – was seeking to persuade Democratic members of the Senate Judiciary Committee not to get into the controversy over the GTECH lottery contract. Meanwhile, Texas newspapers were onto the story with the Dallas Observer, Houston Chronicle, and Austin American-Statesman printing articles about the GTECH controversy. The Dallas Morning News did not cover the story.

There were denials all around that anything improper had taken place. But, did the Bush Administration want to see all those old National Guard charges resurrected again, particularly at a time when the Administration was under siege on a number of fronts?

John Fund was the point man in making the reasoned argument as to why the Miers nomination was a mistake. Now, the President has an opportunity to get it right just like he did when he named John Roberts to the Supreme Court. It looks like he has done that with the nomination of Samuel Alito who was confirmed to the 3rd Circuit on a 99-0 vote. Even Teddy Kennedy praised Alito back then. However, don’t expect it to be so smooth a confirmation for Judge Alito this time.

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