Congress To the Rescue?

This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.

The New York Sun

Let’s assume one utterly safe thing. Namely, that President Bush would be deliriously happy if the Harriet Miers problem simply went away.


That is the working assumption, and it is fatal to argumentation to challenge an assumption. Within the rules, then, we have to ask: How to effect the disappearance of Ms. Miers?


John Fund of The Wall Street Journal has privately hinted at one way to do it. Not without pain – there is almost always pain in such matters, but how to make the pain tolerable?


Begin with corollary assumptions, namely that Miers is eager to lessen the humiliation of Bush – and that Bush is eager to lessen the humiliation of Miers. If she announced that, on second thought, she did not wish to serve on the Supreme Court, the public assumption would be that Bush had pressured her to withdraw. That would effect humiliation in approximately 50-50 doses: the president for having backed down, Miers for having collaborated in his submission to pressure. They would both be better off than if he simply withdrew the nomination, or she simply changed her mind about her willingness to serve.


Along comes a fresh idea by which the dilution of blame, and therefore of humiliation, might be effected. The question has actually presented itself: Might the Senate Judiciary Committee play horse to her Lady Godiva – to appropriate the old legend? If she is willing to ride naked through the streets to prove her fidelity to her cause, would Congress consent to serve as the horse that would bear the burden of the bared lady?


The road is well paved for an impasse. Senate committee members, as prominent as Patrick Leahy and Arlen Specter, have asked to examine some of the work Miers did for the president. Republican senators Sam Brownback and Lindsey Graham have joined in asking to see such work. The position of the senators is that they cannot adequately review her experience without having some idea of what she actually did in counseling the president.


Mr. Bush has replied with a dramatic refusal. To do such a thing would be forever to compromise the essential privacy of the Oval Office. If someone giving advice to the president had reason to believe that that advice might one day be the object of public scrutiny, said advice would be attenuated by any prospect of full exposure. The president said that he could take no steps that would diminish the resources of the executive to seek advice.


The inquiring senators have said that theirs is the obligation to assess the work done by the nominee, and someone was tactless enough to remind the White House that Nixon’s tapes, in which he figured, along with friends, advisers and counselors, were judged to be public property by the Supreme Court, leading of course to the presidential resignation, the ultimate flowering of Watergate.


One spots the opportunity here. There are 18 members of the Senate Judiciary Committee, eight Democrats and 10 Republicans. Suppose that the other seven Democrats join Senator Leahy in insisting on access to the Oval Office records, and that one Republican senator joins with them. That would make for a tie. A second Republican (Senator Graham? Senator Brownback?) voting with the Democrats? The result: Hearings would be frozen in the matter of Harriet Miers.


See then the resulting apportionment of blame/humiliation. The president is seen doing nothing more dramatic or sensational than defending executive rights, the same rights championed by other presidents, for instance President Eisenhower against Senator McCarthy. The Senate committee would be seen championing a right that it believed consistent with its obligation to investigate the qualifications of a presidential nominee.


In this fight, attention is drawn away from Bush-Miers. Both the president and Ms. Miers escape humiliation. And Congress has saved the day.


The New York Sun

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