Commentary: The “Krauthammer factor”
Almost from the beginning, the Supreme Court nomination of Harriet E. Miers has been in trouble with prominent conservative columnists. It is by no means certain, however, that those writers are having an appreciable effect — except perhaps in hardening the opposition among conservatives who have been similarly troubled. Over the weekend and on Monday, however, the beginnings of what might be called the “Krauthammer factor” seemed to be taking shape.
That factor can be distilled into a headline, the one that appeared atop Charles Krauthammer’s column on Friday as published in the Washington Post: “Miers: The Only Exit Strategy.” His notion of “a way out” was “irreconcilable differences over documents,” leading potentially to Miers’ withdrawal to save face for both the Senate and the White House. The documents he had in mind were, of course, the internal papers from Miers’ work as a lawyer in the White House.
The first part of the “Krauthammer factor” emerged over the weekend: bipartisan calls by senators for access to those documents. The senators were making, in one way or another, the same point: that Miers’ only experience with the kinds of issues she would face on the Supreme Court seems to have come during her White House roles, so senators must see those papers. Anticipating more such demands, Krauthammer said the documents were “essential” for the Senate if it is to judge Miers’ nomination.
On Monday, the second part of the “Krauthammer factor” emerged: President Bush said, without qualification, that the senators would not be allowed to have access to those papers. In remarks following a Cabinet meeting, the President said: “Recently, requests…have been made by Democrats and Republicans about paperwork…out of this White House that would make it impossible for me and other Presidents to be able to make sound decisions….It’s a red line I’m not willing to cross…[W]e are 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. And that’s not only important for this President, it’s important for future Presidents.”
This was not a first-time declaration by the President. From the outset of this Bush Administration, top officials — especially, Vice President Cheney — have maintained that the White House in recent years has lost too much control over presidential prerogatives, so the time had long since arrived for laying down that “red line” that the President said could not be crossed. That sensitivity, of course, is what lay behind the fight that went to the Supreme Court over the internal papers of Cheney’s energy task force. And it was this sensitivity that led the White House to resist, successfully, demands for internal papers when the Senate considered the nomination of now-Chief Justice John G. Roberts, Jr.
Against this background, the President’s remarks, following on the senatorial demands, may have set up a showdown, what Krauthammer called “a classic conflict” of constitutional dimensions between Senate and White House. The columnist suggested a “perfectly honorable way to solve the conundum” — Miers withdraws.
There was a curious aspect to what the President said Monday. His remarks came in answer to a reporter’s question about whether the White House was “working on a contingency plan for the withdrawal of Harriet Miers’ nomination.” The Washington Times had said on Saturday that such a plan was being explored. Bush did not answer that question directly, but his answer appeared to link the question to the demands for documents.
No one outside the White House — or, at least, no one beyond the tight circle of White House aides and their closest outside political advisers — can tell whether the conflict over internal papers will become decisive, in other words, whether the “Krauthammer factor” becomes anything more than a columnist’s musing.
There are two weeks left before Senate Judiciary Committee hearings are scheduled to start, and that is plenty of time for the jousting over documents to grow more threatening to Miers or, alternatively, for some kind of compromise to be fashioned. Even the scheduled Nov. 7 opening of the hearings could be jeopardized, if senators take the President at his word as expressed on Monday. With little or nothing to go on but the testimony Miers would give in person, the Committee’s members — on both sides of the aisle — may grow restive and more resistant.
But, one thing is reasonably predictable at this point: if the hearings go forward, and there are no White House documents to explore, the constitutional quizzing of Miers by senators would become more wide-ranging and probably more aggressive, and her answers more critical to her chances. It may be difficult for her to “cram” for that quiz in just two weeks’ time. And she would have no White House documents in her briefcase to consult as she fashioned her answers.
This may be a “factor,” but it is kind of silly to present it as a face-saving exit strategy by the White House, isn’t it? I think any objective thinker — including those in the Senate — would consider the documents at issue here — internal White House materials created by the Counsel — to be at the pinnacle of materials protected by executive privilege, colored by attorney client concerns. I’m not sure this material can be compared to the task force or old Roberts executive branch files. It is stuff the Senate would never consider asking for normally, and that no President would ever consider releasing, as the Senate Judiciary Committee well knows. So, the Senate seeking the documents — when they know they will not be released — is the Senate trying to find a way to dump Miers without facing the merits. But the White House response is the only one that can be given in the circumstances, i.e., “NO.” The timing of the explanation seems coincidental (i.e., when asked about Miers, Bush provided the canned Miers answer, which includes the unequivocal denial along with a bunch of other stuff that also was not responsive to a question that called for a nonresponsive answer). And the White House will not decide whether this becomes decisisve — the Senate will — because no White House would ever release this stuff.
Comment by commenter — October 25, 2005 @ 12:48 pm
At this point, I have no opinion as to whether Harriet Miers is well qualified to be a justice of the Supreme Court. I don’t know much about her. She certainly doesn’t have the background I would expect, but I don’t hold that against her. I like the idea of finding someone who doesn’t have the usual background.
And so I don’t agree with those who’ve made up their minds: people like Bill Kristol and Virginia Postrel. I think we should go ahead with the hearings. In the past, Mr. Kristol’s told us that the Senate should give the president’s nominee an fair, up-or-down vote. I can see no good reason why Ms. Miers shouldn’t have her day in court. She might surprise us all.
Maybe she won’t surprise us. Maybe she’ll present herself as some deep, dark secret who can’t discuss anything of substance lest it jeopardize our entire future. In that case, the Senate rejects her. Fine! That’s the way it’s supposed to work, right? Let’s at least give the woman a chance.
What about the next nominee? What if he/she isn’t a lawyer?
There’s nothing that says only lawyers can be justices of the Supreme Court, and I’m convinced a law degree is not a prerequisite for the position. A candidate must have a solid understanding of constitutional law and civil law and criminal law and common law and all that to be found competent, but you can have all that without a law degree.
I hope the next candidate has a PhD in mathematics or engineering. What we need, methinks, is someone has a solid understanding of logic and law.
Now . . . imagine this (you can go ahead and imagine it even if you are aware that President Bush has said he wouldn’t even consider it): imagine that the next nominee has a degree in engineering (and a degree in law that wasn’t used for long) and is neither a Christian nor a Jew! Imagine some agnostic engineer being nominated! He/she knows all about the law, but doesn’t believe.
In that case, what would we be most concerned with: the lack of judicial experience, or the lack of belief?
Comment by LyricalReckoner — October 26, 2005 @ 1:15 pm