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Toobin: 'Almost as if senators were baiting her'

Senior legal analyst says high court nominee Miers didn't have support

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CNN's senior legal analyst Jeffrey Toobin

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(CNN) -- President Bush's choice for Supreme Court justice nominee, Harriet Miers, withdrew from consideration Thursday -- a nominee who had come under fire from both conservatives and liberals.

CNN's Miles O'Brien talked to CNN's senior legal analyst Jeffrey Toobin about events surrounding her nomination and her withdrawal.

O'BRIEN: Jeff, stunning is the word that (CNN White House correspondent) Dana Bash used. Are you stunned?

TOOBIN: Well, I'm certainly stunned that it happened today, but this was obviously a troubled nomination and she was by no means a sure thing for getting confirmed. I do think that the issue of the documents and the fight over whether the Senate could have access to her records as White House counsel is kind of a pretext. The reason why she didn't -- why she's withdrawing -- is the support wasn't there. She's gone.

O'BRIEN: The documents in question here are documents that the committee would never get a hold of, probably, because they're considered privileged communications between the president and his counsel, right?

TOOBIN: And that's why I thought that this revised questionnaire, which was due last night -- and frankly hour after hour passed, I don't even know if it was ever submitted -- was going to be a big factor in in the continuing struggle over her nominations -- because it was almost as if the senators were baiting her into a confrontation in an attempt, perhaps, to get the nomination dropped.

But she's gone. The president's got to start from Square One again.

O'BRIEN: Clearly they were spoiling for a fight on this one and I think it caught a lot of people by surprise at how strong their feelings were about it.

There were two issues that I saw. You had an ideological issue; and then you had the kind of (Senate Judiciary Committee Chairman Arlen) Specter issue, which was he didn't feel -- and coming after Roberts, this had to be difficult -- she was fully conversant at the level she should be to sit on the high court.

TOOBIN: I think you're right. I think what ultimately killed her nomination was the combination of the two.

Because the Republicans would welcome an ideological fight that -- and I suspect we may see one on this coming nominee. I think that they will pick a highly qualified, highly conservative nominee who (would) overturn Roe v Wade. Let's have a fight over that kind of Supreme Court justice.

The problem was that Harriet Miers didn't present that sort of clean fight. She also had the issue of no judicial experience, no experience with constitutional law, cronyism ... that, the Republicans were uncomfortable fighting about. They'll fight over the ideology, but they didn't want to fight about conflict.

O'BRIEN: If you're going to do an ideological fight, the moral of that story is you need another bulletproof candidate.

TOOBIN: You may see one.

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