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October 20, 2005
The Final Act Of Miers Nomination Begins

CQ reader Tom Holsinger notes a key development in the Harriet Miers nomination to the Supreme Court, one that probably will signal a merciful end to the conservative split over the controversial selection. Two key Republican Senators, the conservative Sam Brownback and the more moderate Lindsay Graham, have "requested" privileged material from Miers' work with George Bush for their review as a condition of their desired support of Miers' confirmation -- a request that amounts to a polite triple-dog dare:

Sens. Lindsey Graham (R-S.C.) and Sam Brownback (R-Kan.) are calling for the White House to turn over internal documents related to Supreme Court nominee Harriet Mierss service as White House counsel, breaking with Republican colleagues who say the boundaries of executive privilege must not be pushed. ...

Grahams and Brownbacks push for greater disclosure will give Democrats political leverage should they ask for memos and other documents shedding light on Mierss work within the Bush administrations inner circle. It would take only two Republicans to defeat Miers in committee, although that would not prevent the nominations automatic discharge to a floor vote.

Whether or not the White House recognizes it as such, the pair used this demand to send a shot across the bow of the administration. The White House has long defended the right of the executive to retain attorney-client privilege when nominating a counsel to another post, even to the federal bench, a position well worth defending. Both Senators understand this and have long backed that position. They would not issue demands that abandon this important precedent lightly -- well, perhaps Graham would, but not Brownback.

They want to tell the White House that Bush has sent an insufficient candidate to the bench, and that the only possible way the Judiciary Committee could justify a vote to confirm her is to find significant work that just doesn't appear in her public record. That message can be boiled down further: under the current circumstances, they are not prepared to support her, and in fact do not see themselves moving off that position.

All it takes is two Republicans to torpedo her chance for approval by the Committee. At one time, I felt sure that the Democrats would fight to keep her nomination alive, given the options that would follow if Miers failed. However, a chaotic and foolish PR campaign by the White House that promoted Miers' evangelicalism and her 1989 written commitment to a Constitutional amendment banning abortion has left the Democrats little choice but to oppose Miers. Even with a brilliant and canny candidate in Roberts who avoided discussion of either religion or his personal views on abortion, only three Judiciary Democrats crossed party lines to support his recommendation to the full Senate. Even if Miers gets defeated in committee, a previous agreement on Supreme Court nominees will send Miers to the Senate floor. However, if Brownback and Graham defect, the pair will give Republicans enough cover to reject Miers on the floor.

In truth, Brownback and Graham give George Bush cover of a different sort. Their demand makes it possible for Bush to withdraw Miers for an important principle, rather than as a failure and an embarrassment. It will kill for all time the idea of nominating one's personal attorney for the Supreme Court and still might damage the protection of privilege for administration counsel, but it beats having to retreat after all the effort made in promoting Miers and touching off a conservative food fight. Either Miers could withdraw herself to protect the attorney-client privilege, or Bush could announce that he wants to protect future administrations from unwarranted incursions of one branch into the privileges and protections of the other.

The Senate GOP wants to protect George Bush and the White House by giving him a face-saving way out of the mess he made. At this point, this is one life-saver the President should seriously consider grasping with both hands.

UPDATE: Again via Tom H in the comments, Charles Krauthammer agrees:

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.

It even allows the President to work up a little righteous anger over the treatment that Miers received by critics and call for more decorum and patience the next time around. And the next time around, the president can pick someone who gets vetted by someone other than his or her employee, if he wants to avoid this kind of experience in the future.

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Posted by Ed Morrissey at October 20, 2005 9:48 PM

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