Think again

As I’ve been suggesting, the fascinating thing about the Miers nomination is the way it forces politicians, pundits, and bloggers into uncharted territory, requiring them/us to think, whereas it’s normally enough just to react. And strange things happen when people start to think.

Few think better than Charles Krauthammer. But he should think again about his column of today. Krauthammer’s starting premises are that Miers’ nomination was “a mistake” (hard to dispute) and that “it would be best for the country that she not be confirmed for the Supreme Court” (quite possible). His conclusion, that we need “an exit strategy,” follows from his second premise.

What’s his exit strategy? Seize upon the demand of Senators for privileged documents Miers produced as White House counsel, and the fact that Miers cannot produce them. According to Krauthammer, the Senate should take the position that it cannot confirm her without the documents, because it needs them to assess her ability to analyze the Constitution. This approach would leave Miers and White House with no choice but withdrawal. “Faces saved. And we start again,” says Krauthammer.

But where would we be starting from? The principle established by Krauthammer’s charade would be that a nominee whose legal experience does not include dealing with constitutional issues, or included such experience only in a privileged context, cannot be confirmed. That principle would artificially restrict eligibilty for the Court. And it could easily be extended to restrict it even further. Some Democrats argued that without John Roberts’ papers from his time as deputy Solicitor General it didn’t have information to reach an informed conclusion about his qualifications. He hadn’t been a judge long enough to decide many constitutional cases; his work in private practice was driven by his clients; and his writings during the Reagan years were those of a lowly staffer doing the bidding of his bosses. The Dems couldn’t make this argument stick, but then they were in the minority.

Too many quirks have already been super-imposed on the confirmation process due to considerations of expedience. Let’s not add another one. If Miers withdraws, let it be due to legitimate criticism. If she doesn’t, let’s have the hearings and do the hard thinking.

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