Less than a week ago, Washington Post columnist Charles Krauthammer proposed an “exit strategy” for the nomination of Harriet Miers. Today, the White House followed Krauthammer’s script, virtually to the letter. Ms. Miers withdrew her nomination because of concern over the “burden” that Senate requests for “executive branch materials and information” would have on the functioning of the White House. President Bush accepted the withdrawal because “senators would not be satisfied until they gained access to internal documents concerning advice provided during her tenure at the White House.”
What is remarkable about Krauthammer’s column is that he explicitly described his withdrawal strategy as a cover: he didn’t seriously argue that a constitutional conflict was unavoidable or insoluble. Instead he encouraged the White House to create and rely on such a conflict. What is remarkable about the withdrawal of Miers’ nomination on Krauthammer’s grounds is that it comes before any serious negotiation over the appropriate scope of executive privilege took place. For all anyone knows, the Senate may have confirmed Miers without seeing a single privileged document. Rarely has such a cynical proposal been followed so transparently.
There are many more plausible reasons for Miers’ withdrawal. A leading candidate is the unprecedented and vicious campaign waged against Miers by activists on the fringe of the President’s party. To many of these activists, it was not enough that Ms. Miers had won the confidence of a conservative President. They wanted guarantees about how Miers would vote on the Supreme Court on particular, hot-button cases and legal issues. Rightly, Ms. Miers would not provide such guarantees.
Ms. Miers has followed these activists' call in withdrawing her nomination. But President Bush cannot give in to their demand for a nominee who passes their litmus test.