Thursday, October 27, 2005

The Longest Day?

With the spectre of possible indictments hanging over President Bush's top advisors, now Harriet Miers mercifully "withdraws" her nomination to the US Supreme Court. Today promises to be a very long day at the White House.

I wonder where she / they came up with the face-saving rationale for this development? Because Miers' withdrawal letter sounds an awful lot like this.

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.

Early chatter is suggesting that Solicitor General Ted Olsen may be under consideration. Olsen might make some sense. He's a heavyweight who will light up the hearings just like Roberts. Olsen also passes the "Friend of Bush" test in the sense that he lead the Bush legal team in the 2000 Florida recount. While he would certainly come under scrutiny for his role in the 2000 Florida case and would still be a polarizing figure in some circles, Republicans would unanimously be in his camp and his skills and qualifications would be largely self-evident and unquestionable.

It seems to me that Bush cannot afford another snafu on a SC nomination. He really can't allow himself to get hung up on gender and race quotas. He has to pick someone that even critics will be forced to defer on. So, W, do yourself a favor. Unlike Iraq, hurricanes and the CIA leak case, you have complete control over who you nominate. Start vetting candidates, ignore their gender and race, don't listen to Harry Reid, and pick the best conservative available. In short, send us another John Roberts.

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