On July 1, 2005, Sandra Day O'Connor announced her plan to retire as an associate justice of the U.S. Supreme Court, effective as of the date that her replacement was confirmed by the United States Senate.

After William Rehnquist died of complications from thyroid cancer on September 3, Bush withdrew this nomination and renominated Roberts for Chief Justice, to which he was confirmed.

Her academic background went against a tradition that had gained momentum since the late 1970s of appointing justices who had received their collegiate, legal, and other graduate education at elite institutions.

At the time of her nomination, all sitting justices hailed from the leading "Top 14" law schools (specifically Yale, Harvard, Stanford, Columbia, and Northwestern).

Addressing her education, conservative columnist and Harvard-trained psychiatrist Charles Krauthammer contended that "the Supreme Court is an elite institution.

It is not one of the 'popular' branches of government"; conversely, Harry Reid (a graduate of George Washington University Law School's part-time program) stated he did not feel an Ivy League pedigree was a necessary criterion for placement on the court.

Speaking to Miers's lack of credentials, the White House quickly advanced the defense that 41 of the 110 Supreme Court Justices appointed to date had never served as a judge prior to their nomination.

[14] The subject of Roe v. Wade, among other abortion-related Supreme Court precedents, was highly topical in this nomination, in part because O'Connor had voted to overturn a number of state restrictions on abortion, often in narrowly divided 5–4 decisions.

The questionnaire asked "If Congress passes a Human Life Amendment to the Constitution that would prohibit abortion except when it was necessary to prevent the death of the mother, would you actively support its ratification by the Texas Legislature."

Senator Brownback, a member of the Judiciary Committee, said there was a "good chance" he would vote against Miers if she testified that Roe v. Wade was "settled law".

[14] Miers withdrew her nomination shortly after an awkward dispute she had in a private talk with Sen. Arlen Specter of Pennsylvania, then the Republican chairman of the Senate Judiciary Committee.

Miers indicated on the questionnaire that she supported civil rights for homosexuals, but opposed the repeal of the sodomy laws that were ultimately overturned by a 6–3 decision (with Justice O'Connor in the majority) in Lawrence v. Texas.

"[22] Miers' rationale for withdrawing her nomination—that she feared the Senate's demand for information about her White House work would force a breach of Executive Branch secrecy—may indicate that she supported expansive presidential powers.

[24] Since her legal experience did not compare to that of other possible candidates, like federal appellate judges Edith Jones, Priscilla Owen, and Janice Rogers Brown, it was deemed likely that President Bush nominated Miers for her personal loyalty to him rather than for her qualifications.

[28] Brown had resigned as chief of FEMA exactly three weeks prior to Miers' nomination, amidst nearly universal condemnation of how he and his agency handled Hurricane Katrina.

Notable conservative commentators expressing these or other concerns included newspaper columnists Pat Buchanan, Ann Coulter,[29] Charles Krauthammer,[30] William Kristol,[31] Rush Limbaugh, Ramesh Ponnuru, and George Will;[32] former Bush speechwriter David Frum; and constitutional scholar Randy Barnett.

[33] Finally, Robert Bork, one of the premier advocates of originalism and a Supreme Court nominee under President Reagan who was eventually rejected by the Senate, proclaimed that the nomination was "a disaster on every level," and a "slap in the face" to conservatives.

In mid-October, the Senate Judiciary Committee requested Miers resubmit her judicial questionnaire after members complained her answers were "inadequate," "insufficient," and "insulting.

[44] Bush and Miers attributed her withdrawal to requests from the Judiciary Committee for the release of internal White House documents that the administration had insisted were protected by executive privilege.

The claim of executive privilege had been publicly recommended as an "exit strategy" by commentators such as Charles Krauthammer,[46] and reports indicated that White House advisors had considered that as a tactic.