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Slate's Jurisprudence: Miers Drops Out


From NPR West, this is DAY TO DAY. I'm Noah Adams.

Our lead story is that Harriet Miers has withdrawn her candidacy for the United States Supreme Court. On the floor of the Senate earlier today, Senate Majority Leader Bill Frist read from a written statement by Miers outlining her reasons for withdrawing.

Senator BILL FRIST (Republican, Tennessee): `Repeatedly in the course of the process of confirmation for nominees for other positions, I have steadfastly maintained that the independence of the executive branch be preserved and its confidential documents and information not be released to further a confirmation process. I feel compelled to adhere to this position, especially related to my own nomination. Protection of the prerogatives of the executive branch and continued pursuit of my confirmation are intentioned. I have decided that seeking my confirmation should yield.'

ADAMS: This decision comes after heavy criticism of her nomination and questions about her suitability for the job. And with us now to talk about all of this is Dahlia Lithwick, a legal analyst for the online magazine Slate and for DAY TO DAY. This issue, Dahlia, of executive privilege, could it be a pretext here do you think?


Oh, absolutely, Noah. I think this was always lurking under the surface. The only reason it came out now I think is because the nomination was is in such trouble. This was an idea floated by Charles Krauthammer, the columnist, suggesting this was the, quote, "exit strategy" that could get the Bush administration and Harriet Miers out and still save face rather than have a fight about her character and qualifications. We could have a fight about constitutional prerogatives, whether the executive branch or, in fact, the Senate Judiciary Committee could see those papers. It's a much more attractive fight than the fight about whether Harriet Miers is a flaming liberal.

ADAMS: Well, hardly a flaming liberal, but, nonetheless, this nomination seemed to be in trouble almost from the time it was announced. Remind us of the early criticisms of Miers and where they came from.

LITHWICK: The first two strains of criticism actually came from the far right, and they were, one, that she was a crony, that she had no experience other than having essentially been in George Bush's employee for the last 10 years and was fiercely loyal. And as you'll remember, there was a lot of talk--this is what the Federalist Papers warned against--the president can't just, you know, pick his best friends and put them into office. The other thing that was immediately a problem with this nomination was that she had no record. The president tried to talk in code about her. He talked a lot about her heart. He talked about her religion, but he had no concrete evidence to point to the fact that she was going to be the sort of reliable conservative that the far right wanted. So essentially they were expecting a far-right sort of activist who was going to get on the court and overturn Roe v. Wade, and instead of giving them that, the president gave them someone who he promised, based on his own knowledge, would do that and that just was never enough.

ADAMS: Now a deep breath at the White House. There are other difficulties there at the end of this week, but when do you expect a new name to come forward and who do you think that might be?

LITHWICK: The White House is saying it's going to be shortly. Certainly their short list now with Miers' name off it is still in place. I think that there's a good possibility, given that the base, the far political right, really sort of smelled blood in the water and now they know how much power they have over this nomination. They're going to clamor for the person they wanted in the first place. So there's a very good chance that we're going to see a Priscilla Owen from the 5th Circuit, a Janice Rogers Brown from the DC Circuit, a Michael Luttig from the 4th Circuit. All of those are names of people who are extremely reliable, predictable conservatives who have said in one way or another and have long judicial records to show that they're going to sort of start that right-wing counter revolution on the Supreme Court that Bush's base has been waiting for.

ADAMS: In the meantime, Sandra Day O'Connor has to work a few more months there.

LITHWICK: That's right, Noah. She's certainly on the court, but it's important to understand that once her replacement is seated, she can't vote on cases. Her replacement is going to have a tough time voting because they didn't hear oral arguments. So there's a real possibility that O'Connor will be on the court and not voting, that the replacement will have to rehear a lot of key cases later on this year.

ADAMS: Dahlia Lithwick, legal analyst for the online magazine Slate and for DAY TO DAY.

Thank you, Dahlia.

LITHWICK: My pleasure, Noah. Transcript provided by NPR, Copyright NPR.