Commentary: The “Krauthammer factor”
on Oct 24, 2005 at 9:00 pm
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.
