WASHINGTON -- "Stunning" officials in Washington, Harriet Miers withdrew as
nominee for the U.S. Supreme Court in an evening call to President Bush
after a White House sounding of Senate opinion on Oct. 26.
Her withdrawal letter, released the next day, focused on an impending
conflict with the Senate Judiciary Committee on releasing her White House
papers. Deeper explanations cited growing misgivings about her
qualifications among Republican senators and a misjudgment by Bush in
naming her in the first place.
As Washington awaits another nominee for the Supreme Court, promised to
come very quickly, the withdrawal means that Supreme Court Justice Sandra
Day O'Connor would postpone her resignation even longer. She is now likely
to vote on several Indian cases pending before the court. She heard the
argument in the motor fuel sales tax suit between Kansas and the Prairie
Band Potawatomi, and could also help decide whether to take up appeals from
Rhode Island on land-into-trust rules and from New York state on the Cayuga
Miers will return to a crucial role behind the scenes as White House
counsel and legal adviser to Bush.
In the reaction to Miers' withdrawal, little attention was given to her
mysterious involvement in issues of "tribal sovereign immunity" while chair
of the Texas Lottery Commission. But that question also threatened to
embarrass her nomination and her lukewarm supporters in the religious
The spate of commentary that erupted shortly before 9 a.m. Oct. 27, when
the White House released her withdrawal letter, focused on the major
rebellion against Miers in the president's conservative political base. But
U.S. Sen. Trent Lott, R.-Miss., struck a broader note when he said he had
misgivings about her qualifications for the job. It appeared that the
nominee's one-on-one meetings with senators had gone badly, failing to make
up for her lack of judicial experience and unfamiliarity with
Miers flubbed another chance to reassure the Senate Judiciary Committee
when its partisan leaders called her response to a questionnaire
"inadequate" and asked her to redo it. Among the questions raised by her
initial set of answers was her experience with tribal sovereignty. The
context of her answer suggested strongly that, as rumor had it, she was
involved in the campaign by Texas officials to shut down two tribal
Listing her experience with constitutional issues, she wrote: As a member
of the Texas State Lottery Commission, I was responsible for overseeing the
operations of one of the nation's largest lotteries. Among the many issues
before the commission were questions arising under the Federal Indian
Gaming Regulatory Act, which implicates tribal sovereign immunity."
As Texas governor, George W. Bush appointed Miers, his long-time personal
attorney, chairman of the lottery commission in 1995. She served until
early 2000, when she left to join his presidential campaign. During this
period, the state fought a long legal battle to close casinos operated by
the Yselta del Sur Pueblo of Tigua Indians and the Alabama-Coushatta Tribe.
The state won its last appeal in 2002, returning the two tribes to their
When the state first brought suit in 1993, during the tenure of Democratic
Gov. Ann Richards, officials said they acted because of the competition the
casinos posed to the fledgling state lottery. Miers repeated that concern
as chair of the lottery, even though it had grown to a $3.9 billion revenue
Leaders of politically active Christian groups also opposed the casinos, in
a network coordinated by Ralph Reed. This network included James Dobson,
founder of Focus on the Family, who emerged as a key but conflicted
supporter of Miers in early efforts of the White House to sell her
nomination to its religious base. An investigation by the Senate Indian
Affairs Committee shows that Reed mobilized this network in concert with
the disgraced lobbyist Jack Abramoff. After the campaign succeeded,
Abramoff sold his services to the Tiguas for a public relations effort to
reopen their casino.
Documents involved Dobson and Reed have surfaced in a current SIAC probe of
lobbying at the Interior Department. They figure in sub rosa efforts by the
Coushatta Tribe of Louisiana to forestall casino competition from another
Louisiana tribe, the Jena Choctaw.
No evidence currently shows that Miers was involved in the 2000 -- '01
campaign against the casino, which unrolled after she left the lottery
commission. But her reference to experience with "tribal sovereign
immunity" clearly involves her with the major state litigation against the
tribes, which lasted throughout the '90s. The legal issues are central to a
spate of cases in New England which are now heading toward the Supreme
The major ruling on the Tigua case, from the 5th Circuit Court of Appeals,
also feeds into an ongoing struggle between Congress and the Supreme Court
over "judicial supremacy." This struggle, a kind of slow-motion
constitutional crisis, has made Congress unusually feisty in dealing with
judicial nominees. It loomed as a final barrier to Miers' chances and is
very likely to reemerge with future nominees.
The case revolved around the conflict between the Texas Restoration Act,
which restored the federal trust relation with the Tiguas, and the Indian
Gaming Regulatory Act. The two passed Congress within months of each other
in 1988. In lobbying to get out from under the thumb of state government in
the Restoration Act, the Tigua had promised never to get involved in
gaming. In the final version of the bill, the language was changed to track
the Supreme Court's 1987 California v. Cabazon Band of Mission Indians
ruling. The tribe argued that IGRA, the congressional policy response to
Cabazon, should supersede the Restoration Act.
Since Texas subsequently set up a state lottery, the tribe said it should
be free to open a casino.
But the 5th Circuit disagreed, saying that IGRA didn't change the earlier
tribal promise to forego gaming. In congressional hearings in 2002, former
congressional staffers vehemently criticized the 5th Circuit. Alex Skibine
said the decision showed a complete "disregard" for congressional intent.
Grouping it with other cases that have irritated legislators, he said, "The
court seems to be 'dissing' Congress."
This issue could have emerged as a red flag in the Miers hearings, but her
nomination never got that far. She had promised to provide the Judiciary
Committee with more complete answers by Oct. 26. Instead, she sent her
letter of withdrawal to the White House.