Charles Krauthammer tries to talk Bush down from his commitment to the Harriet Miers nomination.
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?
To avoid the devastating hearings that almost surely lie ahead, Bush can take advantage of the current dispute over document production:
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.
So Miers needs to withdraw, and here is an elegant way to withdraw gracefully. Today would be a good day.
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13 comments:
One thing I try to make my left friends aware of is simply the superior analysis on the non-left. I'm sure there are arguments against what Krauthammer (is that German?) says but it's a good example.
(When you compare the non-left's pundit royalty to the left's, it's amazing that smart people in the left can avoid being embarassed.)
It can't go past today. It just can't...can it?
Sorry, the die is cast. It must run its course. The wagons are circled what with Mr. Karl being grilled and squeezed and poor Tom Delay with one foot in jail. It is better to let the mean old Senators appear vicious and ruthless on TV and deny her the black robe than for George to fess up and tell the world he had poor judgement. No sir! George Bush will not be bullied into this. I wonder though if the cunning hand of Mr. Karl has not already been at work, knowing this would happen to Hapless Harriet, and with her plunge into infamy the GOP will rally behind the politically wounded boss and ram the nomination of Janice B. through all the way onto the Big Bench. You go, Karl, you go, baby!
Art:
Why does a withdrawal have to be simultaneously accompanied by a new nomination? It seems decorous at the least, and probably politically sane, to wait a week or so before re-nominating, (a) to clear the air, and (b) to avoid the appearance that admin had vetted the second nominee while the previous nomination was still pending.
Besides, regardless of the timing of the Miers nomination's demise, they've got to have a short list of partially vetted candidates already.
incidentally, paulfrommpls: who would you name among the "left pundit royalty" (that deserves it IYO)
Agreed, first, because it's true, she does present a conflict of privileges that cannot be undone and, second, because it will be a humiliation as she tries to explain why that isn't so.
And Barbara Boxer will say something stupid.
I am fully convinced that this White House will not follow Krauthammer's excellent advice. Instead they will keep moving ahead with a nomination that looks like a disaster in the making. Despite all the mea culpa's that came from the Bush Administration post-Katrina, the past 4 years clearly indicate that they do not back down even when its clear they are wrong.
I don't know...(note: midwestern phrase indicating disagreement)
The only thing going for Miers going into the hearings is the fact that punctuation will not be an issue.
The GOP will not circle the wagons on this issue if she looks as bad as her performance thus far suggests she will. Too many of their constituents are looking ahead to the "fallback" nomination already - to the nonevangelical conservative base and their favorite commentators, the "fallback" will an opportunity for redemption, and the current nomination merely an unfortunate sideshow between Roberts and the next nominee.
To much of the right, their active support for Bush was a quid pro quo for a guarantee of a proven conservative justice(s). He has broken that deal, and the admin has already begun trying to make amends - note the about-face this week suddenly adopting a hardline stance on deportation of illegal immigrants. They are in a concessionary posture because a big part of the base is about to walk out on them. If that happens, look for approval numbers in the teens or slightly higher.
As far as issues polarizing the GOP, look out also for the Coburn amendment. There is a true minefield of issues threatening the admin and GOP solidarity. The admin didn't make concessions to the Democrat-ish war dissenters, but it will, this time around, to the prospect of its dismemberment.
critical:
methinks you have posted the same laundry list on volokh.
From National Reviewcomes this indication that Bush will not back down no matter how bad it gets.
apologies for multi-consec-posting.
The main point of my comment above is that the "mean democrats" tack is way irrelevant at this point. It worked with a far superior nominee in much rosier days (during Katrina, but prior to much of the Katrina political fallout) that might as well have been years ago.
Barbara Boxer doesn't need to play the bitch this time around - and the abortion lobby probably won't be pushing as hard for her to (okay, maybe it will). And if she does, no one will care.
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