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October 25, 2005
Will Bush Take The Honorable Option Out Of Miers Fiasco?

George Bush appeared to go out of his way yesterday to address the issue of executive privilege and the Harriet Miers confirmation hearings, setting up a contest of wills between the White House and the Senate Judiciary Committee over her nomination. It could mean that Bush intends to push Miers through while revealing almost nothing about her work at the White House, which he has claimed as the major qualifications for her selection. It might also reveal that Bush wants to keep open the option for an honorable withdrawal:

President Bush refused on Monday to turn over documents requested by Republicans and Democrats related to Harriet E. Miers's work in the White House, setting up a potential confrontation with the Senate Judiciary Committee over her confirmation to the Supreme Court.

"It's a red line I'm not willing to cross," Mr. Bush told reporters after a cabinet meeting, referring to the presidential right of executive privilege. "People can learn about Harriet Miers through hearings. But we are not going to destroy this business about people being able to walk into the Oval Office and say: 'Mr. President, here's my advice to you. Here's what I think is important.' "

In recent days, two Republican senators, Sam Brownback of Kansas and Lindsey Graham of South Carolina, have publicly called on the White House to release the documents.

Brownback and Graham became the first two Republicans to call for the release of a range of documents from the White House that comes perilously close to setting a precedent that might fatally weaken executive privilege for the Presidency. Bush notes in his counterattack yesterday that he has a responsibility to fight for that privilege, not just for himself but for future presidents as well.

However, the problem for George Bush is that he nominated someone whose most remarkable qualification for the rarified position for which she seeks confirmation is her work as the President's counsel. Bush himself has made that argument a number of times, saying that their close work together convinced him that she has the requisite understanding of Constitutional theory and judicial erudition to sit on the Supreme Court. If that remains the primary reason for her nomination, it would seem fair for the Judiciary Committee to get as much documentation of that work as possible in order to demonstrate it -- but since most of what Miers has done for Bush involves privileged communications, he would have to allow the weakening of executive privilege to give that to the committee.

This, by the way, is why Presidents who truly care about protecting the concept of executive privilege should refrain from promoting their own attorneys directly to the appellate courts, especially the Supreme Court, unless they had a track record of judicial work prior to their arrival at the White House.

It almost seems too easy at this point for what the media now calls the Krauthammer Option to get played out. Brownback and Graham can either vote Miers down in commitee, claiming that the White House has not provided enough evidence of Miers' qualifications. Sending her to the Senate floor with a recommendation against confirmation will end almost any chance of her confirmation. Brownback sounds as if he means to do so, and after Graham's participation in the Gang of 14 stab, his constituents probably want him to hold the line against Miers now. If Bush wants to protect executive privilege, he will have to withdraw Miers before she gets defeated and he suffers the political damage of trying to push her through a Senate debate that will likely take weeks.

It's so easy that I'm almost certain now that Bush won't take this way out. He will remain stubborn and dare Republicans to vote against him openly. He will find out that some of them are now quite prepared to do so, having given them what they see as a sub-par nominee, which will turn what could have been a nine-day wonder into a lasting breach on the Right. This is why I wrote yesterday that I hope Bush withdraws Miers, but that if he insists on pushing her through, she surprises us all and demonstrates convincingly that she is the originalist that we all wanted. It's about the only way I see this playing out positively at all.

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Posted by Ed Morrissey at October 25, 2005 6:31 AM

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» Is Miers Going Down? from A Knight's Blog
I don’t know. I certainly hope so, and some think it may be on the horizon. Ann Althouse notes this exchange with the press yesterday morning (from the White House web site): Q Mr. President, as a newspaper reported on Saturday, is the White ... [Read More]

Tracked on October 25, 2005 7:26 AM

» Crescendo II from Hard Starboard
Jack Kelly joins the chorus: I had wanted to wait until the hearings to make up my mind about Miss Miers. But now I fear continuing this debacle will produce the worst of all worlds for conservatives. It's hard to find supporters of Harriet Mie... [Read More]

Tracked on October 25, 2005 11:52 AM

» There's still no 'there' there: more wishful thinking on 11 from Virtual Fret Noise
Hugh Hewitt returns from vacation with a long defense of the Miers nomination. He notes that there are three major complaints from the Right: That she is not competent to sit on SCOTUS, that she is not reliable and will “grow” into another disappoi [Read More]

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» Submitted for Your Approval from Watcher of Weasels
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» The Fight Begins from Occasional Outbursts
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Tracked on October 25, 2005 11:48 PM

» Good Goodly Gooks! from A Knight's Blog
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Tracked on October 27, 2005 8:18 AM

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