October 21, 2005
An Exit Strategy for the Miers Debacle
By Charles
Krauthammer
WASHINGTON -- It's no secret that I think the Harriet Miers nomination
was a mistake. Nonetheless, when asked how she will do in the
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 for the Supreme Court.
And while
I remain as exercised as anyone by the lack of wisdom of this
choice, I part company from 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
yet 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-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. At 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 old 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 pre-hearing
omens are not good. When the chairman and ranking 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
Specter about her position on Griswold, the second most
famous ``right to privacy'' case ever, and seemed confused when
answering ranking Democrat 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 confidantes
of Miers explicitly said that she would overturn Roe.
The subsequent denials 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 in fact he did say so, create the nightmare
scenario of subpoenaed witnesses contradicting each other under
oath over Miers.
We need an exit strategy
from this debacle. I have it.
Lindsey
Graham has been a staunch and public supporter of this nominee.
Yet on Wednesday he joined Brownback in demanding privileged documents
from Miers' White House tenure.
Finally,
light at the end of this tunnel. A way out: irreconcilable differences
over documents.
For a nominee
who, unlike John Roberts, has practically no previous 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.
Which 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'
putting preservation of executive prerogative above personal ambition.
Faces saved. And
we start again.
©
2005, Washington Post Writers Group
