Mansfield Fox

Law student. Yankees fan. Massive fraggle. Just living the American dream.

Monday, October 24, 2005

Miers: It's a Wrap

It's now, I think, a virtual certainty that Harriet Miers' nomination to the Supreme Court will be withdrawn prior to the hearings as a result of an intractable conflict between the Judiciary Committee's (quite sensible) demand for Miers' executive branch memos and the White House's (equally sensible) insistence that those memos are protected by either executive or attorney-client privilege. Ever the wise and perceptive one, Professor Althouse spots the precise moment where this became inevitable.

The question now turns to: what next? (In politics, as in Halo, if you're not moving, you're dead.) Has the president learned what I take to be the central lesson of the Miers fiasco, that there's no percentage in "stealth" nominees because enough conservatives, having been burned too many times in the past, simply won't take "Trust me" for an answer? Or, proud and angry, does he nominate the Attorney General, against whom it's much harder to make the "not qualified" claim stick?

Also, is there some point at which Justice O'Connor forces the issue by simply retiring effective immediately? She's old and (I understand) her husband is sick - if she's still on the Court nine months or a year after ostensibly announcing her retirement, with no replacement in sight, does she just step down to attend to more pressing matters? If she does, how does this affect the confirmation process from there on out? (One assumes it makes the parties more likely to compromise, but: who blinks first?)