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Light at the End of the Miers Tunnel?:
Here's another sign of a Miers tipping point — hints that the White House is at least pondering the scenario of withdrawing the nomination:
  The White House has begun making contingency plans for the withdrawal of Harriet Miers as President Bush's choice to fill a seat on the Supreme Court, conservative sources said yesterday.
  "White House senior staff are starting to ask outside people, saying, 'We're not discussing pulling out her nomination, but if we were to, do you have any advice as to how we should do it?' " a conservative Republican with ties to the White House told The Washington Times yesterday.
  If these "conservative sources" are right, this is very big news. Thanks to Howard for the link.
Reason:
To one who is as far outside the Beltway as he is out of conservative Republican circles, this whole piece reads like something out of Pravda.
Would some knowledgeable Kremlinologist out there care to explain it?
10.22.2005 1:26am
Cornellian (mail):
Sounds like they're just asking for advice/help on how they can bail on this nomination without losing anymore face than is necessary.
10.22.2005 1:47am
Big Ben's Little Cousin:
It's a shame that their "contingency plan" will now have to involve nominating what was, at best, the President's 5th or 6th original choice. The administrations' behind-the-scenes smears on their own judges takes several of them out of the running.
10.22.2005 1:50am
Big Ben's Little Cousin:
With regard to the comment from Cornellian, I agree. The problem, however, is that the White House should lose face for nominating a personal friend who practiced in Texas and D.C. without a license and thinks there is a "proportional representation" clause in the Constitution.

It's a shame the Senate can only vote up or down, rather than giving her a grade. She would fail, as opposed to getting the "gentlemen's C" or whatever other grade she supposedly earned in Con Law at SMU.
10.22.2005 1:56am
A Guest Who Enjoys This Site:
I can't follow the link to see the full context of Kerr's posted quote; my computer locks up every time I try. However...

Krauthammer was on FOX today suggesting that one possible strategy had already been put into play. The letter from Specter and Leahy, citing the lack of her written record and her response to the question of her constitutional experience being primarily in her advisory capacity to Bush, specifically requests (almost 'requires') that she submit the briefs, memoranda, et al. that she has generated in 'advising the President on constitutional issues.' Krauthammer maintains, quite correctly, that it is highly unlikely that the White House would release this information. Thus, the strategy for withdrawal is born.

His suggestion is that Miers withdraw herself on the following basis:


"Due to the conflict between the Senate's requirement of specific materials to properly or fully evaluate my (this would be Miers speaking) qualifications and the unique nature of the job, i.e., advisor to the President, which would provide the best evidence as to these qualifications, I must, reluctantly withdraw my name from nomination in the best interests of both the Senate and my client."



Krauthammer feels this would be an 'honorable' way for the White House to withdraw her nomination in that it would be a 'legitimate' reason for the White House and would save face for the Senate Judiciary Committee in that they would have been fulfilling their mandate. The result, he feels, would be that no one, with the possible exception of Miers in that she wouldn't be seated on the Court, would come out the 'loser.'

I suspect that this is a case where those opposed to Miers are trying to send a 'gentle' reminder to 'Bush &Friends' that they do have a perceptual "no harm, no foul" opportunity to change their mind. Without more information and more specifics as to sources, I would hesitate to read any "importance" into this report.
10.22.2005 2:07am
Cornellian (mail):
With regard to the comment from Cornellian, I agree. The problem, however, is that the White House should lose face for nominating a personal friend who practiced in Texas and D.C. without a license and thinks there is a "proportional representation" clause in the Constitution.

Losing as little face as possible could still be quite a bit of face. It might be premature, but I wonder what a withdrawal would mean for the replacement nomination. As close to a Roberts clone as possible to get this out of the public eye as quickly as possible? A red meat conservative to rally the base? A compromise candidate who is actually qualified for the job?

I wonder if a positive outcome of all this is that the next time an unqualified person is offered the nomination, that person might have to think seriously about whether to accept, rather than assuming they'll sail through to confirmation just because the Senate is controlled by the President's party.
10.22.2005 2:08am
Ken Willis (mail):
Dan Henninger has already given them the best advice they are likely to get. Just announce that Harriet has withdrawn and Edith [Jones] has been nominated. Don't try to explain it, just do it. The Edith buzz will quickly drown out all the Harriet buzz, Harriet will slide down the well of history and be forgotten forever.

If Dubya can muster the courage and the will and get over his pig-headed stubborness long enough to do the other 3 things Henninger counsels, or at least one of them, Life will be good again (except for liberals).
10.22.2005 2:13am
llamasex (mail) (www):
She doesn't deserve an up or down vote?
10.22.2005 4:04am
JackJohn (mail):
She deserves an up-or-down vote if she gets out of committee. If she is withdrawn before the committee makes its recommendation, she does not deserve an up-or-down vote in the full Senate.

Bush can nominate whoever he wants after this debacle, because he can say, "I'm weak, if I strike out a second time, 2006 is a loser for us all" and conservatives will line up to support a nominee better than Miers and the media will focus on how much better is the new nominee.
10.22.2005 4:42am
Witness (mail):
Conservatives need to realize - as Bush has - how unimportant the Supreme Court is in the big picture of American law. They really should just shut up, let his nominee sail through, and focus on building on the coalitions necessary to get tax code and Social Security reform passed. He doesn't have the political capital after Katrina to get that done AND put a proven Thomas clone on the bench. So he picked his battle, and - not surprisingly - it wasn't fighting for a judge who would provide - at best - only the 3d voice in a silly, futile attempt at "legal revolution" (a laughable concept at best). Too bad all the big conservative "thinkers" (none of whom obviously have any of the pragmatist instincts of Bush/Rove that got us here in the first place) had to go and muck it up. Even worse, none of them will even realize the consequence of what they're doing until 2008.
10.22.2005 5:01am
JackJohn (mail):
Ok, witness is officially a/n [insert offensive term here].

Most of the judges appointed to the federal judiciary by Republican Presidents have been discovered by C. Boyden Gray, and all have been pro-business and pro-deregulation. Even Miers, whom some conservatives hate, has support from the Chamber of Commerce.

The legal revolution is already here. The question is how much further will it go.
10.22.2005 5:25am
jeremy (mail) (www):
Nothing wrong with an occasional brush-back pitch from the base, which has been fairly long-suffering. Bush offered himself fairly and overtly as a big government conservative. His offering to the base was to offer nominees "like" Thomas and Scalia.

Those gentlemen were known quantities. Miers spent a career remaining an unknown quantity. The president broke his pledge with her nomination. A pledge that already drew the base further to the center than it would have preferred in voting for him.
10.22.2005 6:05am
CrazyTrain (mail):
focus on building on the coalitions necessary to get tax code and Social Security reform passed

Social Security reform??? I am still laughing. You couldn't even get a majority of Republicans to sign up for that giveaway to big business.

put a proven Thomas clone on the bench

And now my laughter stopped. The last thing anyone needs is a Thomas clone -- go read his dissent in Hamdi where he (and he alone) asserted that the President has the power to detain American citizens indefinitely without any process whatsoever. Then go read Justice Scalia's opinion in the case (joined by Justice Stevens ie the two smartest Justices in one opinion) explaining exactly why Thomas was dead wrong and his "opinion" was contrary to one thousand years of law, and was dare I say an activist opinion. Now tell me what is so great about Justice Thomas again??????

10.22.2005 6:11am
Jerome C. Austriaco (mail) (www):
"Now tell me what is so great about Justice Thomas again??????"

His view of the Commerce Clause.
10.22.2005 7:29am
RTG:
"She doesn't deserve an up or down vote?"

This is the problem with having these cute catch phrases. They get applied to a situations the phrase facially applies to, but is in fact completely different. The "X deserves an up or down vote" meme was in opposition to a minority of senators blocking the appointment process via filibuster. This is an almost incomparable situation to an executive, or the nominee herself, withdrawing the nomination.

Another way of thinking about it might be, "if the vote is going to be 'no,' doesn't a nominee, or the appointing executive, have a right to avoid the humiliation of the rejection process by withdrawling?"
10.22.2005 10:18am
magoo (mail):
A Miers withdrawal could, doesn't have to, become a failure of historic proportions for the President. Not many people view the Ginsburg withdrawal as a huge stain on Reagan's record. It was the Kennedy follow-up that was dispiriting to many. I think the pool for a replacement has become rather small. Brown and Luttig would invite a filibuster royale that Bush can ill-afford. Another squishy candidate is unacceptable to the right. Judge McConnell, with his anti-Roe credentials but widespread academic support across the jurisprudential spectrum, might be able to thread the needle.
10.22.2005 10:38am
Lawbot2000:
I would be more than happy to take Mier's spot. Ivy league law school? Check. Young? (23) - Check. Federalist society? Check. Lack of paper trail? Check.
Refuse to overturn Roe? Check.
I'm conservative, but I think that overturning Roe could be the worst thing to happen to the conservative movement or Republicans in decades. The backlush would be enormous - I would imagine there would be very few Repubs left in office after the following election.
10.22.2005 11:28am
Guest19273:
From what we know about President Bush, he is a very loyal person, and he despises those who speak out against him and the administration (see Joe Wilson; Paul O'Neil; Richard Clarke; General Shinseki; every other former administration official turned White House critic). Not only does this make me think that it is unlikely he would withdraw Miers' name, but if she is either voted down, or if she withdraws (because of intense criticism/pressure by conservatives), I could see President Bush passing over all members of the Right-Wing Dream Team and instead nominating Alberto Gonzales or a confirmable moderate with very good credentials (Sotomayor?)
10.22.2005 11:50am
David Maquera (mail) (www):
"Witness" obviously never heard of Kelo v. New London for him/her to make the ludicrous statement that the SCOTUS is "unimportant...in the big picture of American law." Nevertheless, if the White House wants to pull off the political equivalent of a Dunkirk evacuation from this Miers debacle, then the White House should implement Krauthammer's suggestion. The White House should then nominate the one and only conservative intellectual who can be confirmed by the full Senate without utilization of the "nuclear option": Mike McConnell.
10.22.2005 1:16pm
ChrisS (mail):
"Conservatives need to realize - as Bush has - how unimportant the Supreme Court is in the big picture of American law."

Reminds me of an old episode of All in the Family:

"What the Supreme Court says ain't got nothin' to do with the law!"
-Archie
10.22.2005 2:25pm
Byomtov (mail):
The White House has begun making contingency plans for the withdrawal of Harriet Miers as President Bush's choice to fill a seat on the Supreme Court, conservative sources said yesterday.

And of course it must be true. Or maybe not.

Maybe those "conservative sources" are doing a little wishful thinking, or just trying to generate pressure on the White House.

I don't think Bush will cave on this. Grumbling aside, will six Republican senators really oppose a Bush nominee?
10.22.2005 2:42pm
Cheburashka (mail):
The process of caving has already begun. Its exit strategy time.
10.22.2005 4:28pm
Jonny's_Light:
I agree with the majority in regards to Miers withdrawing her Nomination. The problem that I have is that what this one link says: http://volokh.com/posts/1129350045.shtml

This is an old link but I'm not if some of you read it.

Granted, Miers is not a top choice but is she worth the time the Senate will take to grasp her real philosophy of jurisprudence? If she withdrawls, we see her as a blunder of not only President Bush, but the Administration too. She does deserve the right to prove her ability which will be made apparent during the Senate hearings. Plus, if she testifies and messes up, we can criticize her more. So it could be a win/win for the critics.

Even if she proves herself able I doubt that she is confirmed since their is such widespread disapproval across the board...It would take a miracle for this "Evangelical Christian."
10.22.2005 6:41pm
JohnO (mail):
Guest19273:

I get involuntary hives every time I hear the words Sotomayor and SCOTUS in the same sentence. Thanks, pal.
10.22.2005 8:57pm
alexandra (mail):


I think Krauthammer is very creative; we have the Ginsburg rule and hopefully next to come is the Krauthammer excuse!

I'm amazed at some of these comments. Even if the Republicans actually pass decent conservative legislation, it will be challanged in court and unless we fix the judiciary, none of it will matter. The judiciary has become "the super-super-duper legislative body". When I worked and gave money for Bush, I was'nt thinking Roe vs Wade, I was thinking "give us honorable constitutionalist judges.

I believe that if Miers is withdrawn, Bush should nominate Owens, Brown, Luttig, O'Connell , or Alice Batch......something. I heard this woman on C-Span and she's a conservative with constitutional brains and the guts to face off with the Bidens and the press.

If he nominates another lightweight, he will be all alone for the next few years. The Judiciary along with the War on Terror was why he won. He betrayed the conservatives with Harriet and hopefully he is man enough to fix it.
10.22.2005 11:48pm
Lynn B. (mail) (www):
Not many people view the Ginsburg withdrawal as a huge stain on Reagan's record. It was the Kennedy follow-up that was dispiriting to many.

Interesting slip.
10.23.2005 12:23am
Lab:
McConnell ? The guy who talks about constitutional protections for the "unborn" ?


If Republicans want the Somme of the culture war, they'll get it.
10.23.2005 3:14am
alexandra (mail):
I met Justice Ginsburg.........remember the Ginsburg rule..." no hint, no preview" of how i might rule on impending cases.......

I believe there is constitutional protections for the unborn.
10.24.2005 12:01am
Jonny's_Light:
Alice Batchelder I believe to be a solid choice to replace Miers if she withdraws. So I'm with Alexandra and her old lady on CSPAN..
10.24.2005 3:01am