No one should be fooled by the explanation offered by President Bush for the withdrawal of the Miers nomination. President Bush claimed that the nomination could not go forward because Senators “would not be satisfied until they gained access to internal documents concerning advice provided during her tenure at the White House – disclosures that would undermine a President’s ability to receive candid counsel.” Here’s why this can’t be the real reason: no Senators had actually demanded documents showing Miers’ advice to the President, let alone said they would block her confirmation if such documents were withheld.
The Judiciary Committee’s questionnaire did ask Miers to identify constitutional issues she has worked on in the White House, and to provide copies of materials reflecting her familiarity with and views on such questions. As the Committee explained, this was to allow the Committee to learn about her experience with and views on important constitutional issues – a perfectly reasonable, indeed necessary, part of fulfilling the Senate’s constitutional duty of advice and consent. But Senators gave no indication that they were unwilling to work with the White House to get information they needed while letting the White House hold back sensitive materials to the extent possible.
As we’ve said before, there is wide agreement among scholars and former White House Counsels that the appropriate way to balance the Senate’s needs and the White House’s confidentiality concerns would be to negotiate over what documents to produce and how to produce them. The White House could have at least begun this process to see if a mutually acceptable approach could be found. Instead, the President seized on a fictional impasse over documents as an excuse to withdraw a nomination that was in trouble for other reasons – like the far-right outcry over her failure to meet their litmus test.
If there’s any doubt about this, just look at the op-ed piece last week by Charles Krauthammer, a conservative columnist who opposed the Miers nomination. He explicitly said, “We need an exit strategy. I have it.” What was that strategy? “Irreconcilable differences over documents.” Citing this, Krauthammer argued, would allow Miers to withdraw “out of respect for both the Senate and the executive’s prerogatives.”
So there you have it. A cover story for pulling the plug on the nomination. There’s just one problem with it: it’s transparently false.