By Charles Krauthammer
Friday, October 21, 2005
It's no secret that I think the Harriet Miers nomination was a mistake. Nonetheless, when asked how she will do in her confirmation hearings, my answer is, I hope she does well. I have no desire to see her humiliated. Nor would I take any joy in seeing her rejected, though I continue to believe it would be best for the country that she not be confirmed to the Supreme Court.
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.
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?
So, imagine the hearings. First she will have to pass an implicit competency test. As case upon case is thrown at her on national television, she dare not respond, as she apparently did to Sen. Chuck Schumer while making the rounds, that she will have to "bone up on this a little more." Then there will be the withering fire of conservatives such as Sen. Sam Brownback who will try to establish some grounds to believe that (a) she has a judicial philosophy and (b) it is conservative.
And then there will be the Democrats who, in their first act of political wisdom in this millennium, have held their fire on Miers, under the political axiom that when your opponent is committing suicide, you get out of the way. But now that Miers is so exposed on abortion, the Democrats will be poised like a reserve cavalry to come over the hills to attack her from the left -- assuming she has survived the attack from the right.
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.
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.