Krautheimer's Polite Miers Bust

Of all the anti-Miers writers, Charles Krauthammer appears to be the most reasoned. He trusts the president's conservative credentials, he trusts that they've been applied to this choice, and he wishes Miers well in the hearings.

He just hopes she's not confirmed, or that her nomination is withdrawn. In today's Real Clear Politics commentatry, Krauthammer lays out an exit strategy:

Finally, light at the end of this tunnel. A way out: irreconcilable differences over documents.

For a nominee who, unlike John Roberts, has practically no previous 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.

Which 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' putting preservation of executive prerogative above personal ambition.

Faces saved. And we start again.

The White House documents have always been the problematic point of this nomination, and they have gotten more significant as questions over Miers' competence have deepened. I supported the White House's decision not to release documents from Roberts' tenure there, and do so again this time around.

But I still like Miers on the court. I'm not a lawyer and this whole constitutional law debate is over my head, but like Miers, I have a job that requires regularly becoming a quick-study expert on all manner of new things, and I have confidence that she can do it. My experience has shown that when I, the quick study, is in the room with all the experts, I ask questions they don't think to ask and consider approaches they haven't considered.

Sometimes I'm foolishly wrong, but sometimes I save the day. Recently, a client's legal team had convinced the client to take a rather radical approach to an issue. I was asked to review it from a public perspective and came up with a list of questions they might have to answer if they pursued the path. Reviewing the questions, client and lawyers agreed not to take that approach.

I have confidence in a Supreme Court nomination process that involves the periodic injection of new and different blood. We all agree the Supreme Court has reached a critical point in its history. Do we doctor it by giving it more of the same medicine, or do we try something different?

Different is my choice. But that still doesn't get us past the papers, and Krauthammer's thesis may just be the way things turn out.

Update: My friend Jim writes:

To me the most frustrating part of this is that all of the "elites" seem to want more of the same on the Court... If they were fielding a baseball team they'd be trying to hire the nine best pitchers!

I (mis)spent much of my life in the motor sports world, and helped to put together several championship teams... Never once did I set out to hire the ten best engine builders!