Friday, October 21


Charles Krauthammer, in his regular Friday column for the Washington Post (registration required), gets right to it in the first paragraph: he considers the Harriet Miers' nomination a "mistake" and he thinks it "best for the country" that she not be confirmed.

But then he proceeds to take exception with conservatives decrying the nomination:

And while I remain as exercised as anyone by the lack of wisdom of this choice, I part company with those who see the Miers nomination as a betrayal of conservative principles. The idea that Bush is looking to appoint some kind of closet liberal David Souter or even some rudderless Sandra Day O'Connor clone is wildly off the mark. The president's mistake was thinking he could sneak a reliable conservative past the liberal litmus tests (on abortion, above all) by nominating a candidate at once exceptionally obscure and exceptionally well known to him.
It is her lack of qualifications to serve on the SCOTUS that rankles Krauthammer, not her widely-questioned conservative credentials. That's the issue over which the president errored in selecting her.

The problem is that this strategy blew up in his face. Her obscurity is the result of her lack of constitutional history, which, in turn, robs her of the minimum qualifications for service on the Supreme Court. And while, post-Robert Bork, stealth seems to be the most precious asset a conservative Supreme Court nominee can have, how stealthy is a candidate who has come out publicly for a constitutional amendment to ban abortion?

Krauthammer avers that the stars don't line up right for Miers' confirmation, nor do her prospects for surviving the gauntlet of questions (and in some cases their attendant controversy) she'll soon face from Senate Judiciary Committee members. So seriously out-of-step is Miers and her chances of being confirmed such a longshot that Krauthammer goes so far as to suggest an "exit strategy" for this looming "debacle":

The omens are not good. When the chairman and ranking minority member of the Judiciary Committee express bipartisan exasperation, annoyance and almost indignation at her answers to the committee's simple questionnaire, she's got trouble. This after she confused Chairman Arlen Specter about her position on Griswold , the second most famous "right to privacy" case, and seemed confused when answering ranking Democrat Patrick Leahy's question about her favorite justice.

But it gets worse: There's the off-stage stuff. John Fund reports that in a conference call of conservative leaders, two Miers confidants explicitly said that she would overturn Roe v. Wade . The subsequent denial by one of these judges that he ever said that, and the subsequent affirmation by two of the people who had heard the call that he did say so, create the nightmare scenario of subpoenaed witnesses contradicting each other under oath. We need an exit strategy from this debacle. I have it.

Sen. Lindsey Graham has been a staunch and public supporter of this nominee. Yet on Wednesday he joined Brownback in demanding privileged documents from Miers's White House tenure.

Finally, a way out: irreconcilable differences over documents.

Krauthammer sees the withholding of requested documents as the face-saving measure the White House can take to slip-slide away from the Miers' brouhaha and the whithering criticism the president has felt from his own base since her nomination.

For a nominee who, unlike John Roberts, has practically no record on constitutional issues, such documentation is essential for the Senate to judge her thinking and legal acumen. But there is no way that any president would release this kind of information -- "policy documents" and "legal analysis" -- from such a close confidante. It would forever undermine the ability of any president to get unguarded advice.

That creates a classic conflict, not of personality, not of competence, not of ideology, but of simple constitutional prerogatives: The Senate cannot confirm her unless it has this information. And the White House cannot allow release of this information lest it jeopardize executive privilege.

Hence the perfectly honorable way to solve the conundrum: Miers withdraws out of respect for both the Senate and the executive's prerogatives, the Senate expresses appreciation for this gracious acknowledgment of its needs and responsibilities, and the White House accepts her decision with the deepest regret and with gratitude for Miers's putting preservation of executive prerogative above personal ambition.

Faces saved. And we start again.

Krauthammer may genuinely believe he's found a "perfectly honorable" way out -- for Harriet Miers and George Bush; but, what he failed to address in his column is the Bush hubris -- the intractable stubborness of a man who likes to think of himself always as making the hard decisions, while seeing better than anyone else the big picture and the even bigger idea.

Moreover, he does not hint at who best to make this case to the president. I doubt he's listening much to Rove these days and maybe not so much to Cheney either. So who better than his trusted counsel and long-time friend and confidant: Harriet Miers. Ms. Miers should insist that her name be withdrawn for the good of the country and in order to provide President Bush with a way out of this nightmare.