Crescendo

David Frum. Peggy Noonan. John Fund. These were the early voices (besides my own, of course) coming out and telling President Bush what he needs to hear, whether he likes it or not: that nominating Harriet Miers to the U.S. Supreme Court was a grievous mistake he needs to correct ASAP.

That list of voices is growing into a choir of concern, as we, the people who elected and re-elected this man and very much want him to succeed watch, as I put it yesterday, in increasingly horrified wonderment as he rapidly becomes the only human being in the country who doesn't, can't, or won't realize that the Miers nomination is falling apart and reaching the point of guaranteed doom.

Gerard Bradley:

Stop it already! Harriet Miers got this nomination for two reasons: she is loyal to Bush, and she has — or had, prior to the release of "Pro-Life II" — no paper trail. The problem is that neither is the slightest reason for any senator to confirm her. Or for anyone else to support her.

But, wait! That is not the punch line! When they realized that "trust me!" was not exactly bowling over the base, those in charge of this fiasco could have withdrawn the nomination. They did not. Or they could have decided to take their medicine, to play the losing hand and tough it out with dignity. They have not. Instead the Administration has insulted its most loyal supporters, split the Party, and played this silly game of Miers Strategy de Jour.

Worst of all, however, is this: rather than admit its mistake, the Administration instead defines — and redefines and then defines anew, again and again — the qualities of a good Supreme Court Justice, and thus what it takes to do constitutional law and even what constitutional law is, all to suit this unsuitable nominee.

Daniel Henninger:

Harriet Miers is the canary in the Bush mineshaft. Her nomination sent fissures through the walls of a Republican coalition already cracking under the weight of federal outlays for a prescription drug entitlement and highways to nowhere. The disappointment of conservative intellectuals over attorney Miers is said to have been predicted inside the White House, and discounted. A mistake. Many of the best people in conservative politics have walked away from the Bush presidency.

The President needs his party to sustain him through the end of the term, and most of all this means completing the mission in Iraq. A Supreme Court nomination, however important, is a political obligation. Iraq is a moral obligation. The Miers nomination, by undermining the President's standing in his own party - and it has - is threatening Mr. Bush's ability to finish the job in Iraq. The imperatives of presidential leadership trump personal loyalty, especially in time of war, and we are at war.

Mr. Bush should withdraw the Miers nomination and replace her with Judge Edith Jones of the Fifth Circuit. Like Harriet she is from Texas; I doubt Mr. Bush is complaining that the Astros are in the World Series. You want political formation? Judge Jones spent her formative years as an undergraduate witnessing the extrajudicial politics of the left at Cornell circa 1968-71. That is to say, she has already experienced the Judiciary Committee Democrats.

Replacing Harriet with Edith would electrify and unify a broken party.

John Dickerson:

Friends and allies of the White House are now saying the Harriet Miers nomination has come to the same pass that the President's plan for overhauling Social Security reached last spring. The nomination is no longer viable; all that remains is for Bush to accept this....

[I]t's one thing to push a program against the will of the system. It's another thing to push a person. A person bleeds. At some point, Bush's refusal to scuttle Miers' nomination may turn into an act of cruelty. Forcing Miers to go forward increases the chances that her admirable career as a private lawyer, trusted friend, and able public servant will be eclipsed by the repeated calamities associated with trying to ram through her nomination. There is a reason Michael Jordan stopped playing baseball: He wanted to be remembered for succeeding at what he was good at, not failing promiscuously at something he wasn't cut out for.

Rich Lowry:

There is one way that stealthiness is helping Miers. Her nomination would be in an even more precarious state if Republican senators and members of Washington’s conservative legal establishment weren’t too polite, cautious, or cowardly to say publicly what they really think about it. It’s time for the pretense to end.

The stealth strategy always had a whiff of deception about it. In this nomination, the whiff is becoming a stink of contradiction and bad faith. Republican senators should urge the White House to withdraw the nomination. Then Bush can pick a nominee who forthrightly represents his conservative judicial philosophy, and everyone can have a bruising, upfront fight about it.

John Tabin:

Harriet Miers will not join the Supreme Court.

It may seem a little early to say that; Miers's Judiciary Committee hearings, after all, don't even start for two weeks. But given the news this week, I think it's a pretty sturdy limb I'm out on....

Under a bipartisan agreement, Supreme Court nominations can't be killed in committee. But if all the Committee Democrats and even one Republican vote against her, the vote will be 9-9 and Miers will go to the Senate floor without a recommendation that she be approved. This will make it much harder to get Miers confirmed on the Senate floor. It will be harder still - probably impossible - if ten or more Senators vote against her in committee.

"This is going to be an unusual hearing," says Specter, "where I think all 18 senators are going to have probing questions." There's not much reason to think that Miers can skillfully navigate that buzzsaw.

Her nomination is doomed.

The Wall Street Journal:

We sympathize with Ms. Miers, who is an accomplished woman with many admirable qualities. The questionnaire fiasco is as much the fault of the White House, which is supposed to have several lawyers review these things. And more than one of our own lawyer friends have told us that even they would have a difficult time cramming for Senate hearings in four short weeks.

But this is another way of saying that the mistake here was that of the President and his advisers, who badly misjudged the political environment into which they have thrown their nominee. In earlier and less polarized times, someone without broad Constitutional experience might have avoided this trouble. But after decades of Republican anger over judicial activism, and 20 years of disappointing GOP Court selections, a nominee who was a blank slate was bound to get pounded. Mr. Bush has set her up to be hit by a withering political crossfire.

National Review (again):

It now looks as if the confirmation hearings will be the very fight over judicial principles that conservatives have long wanted, but the White House has tried to sidestep. Instead of having a nominee as equipped as, say, a Judge John Roberts as their champion, conservatives will watch the case be made by Miers, who may not even grasp all the principles or believe in them. If she implodes at the hearings, it will not just be her personal embarrassment. She will set the conservative cause back dramatically. Surely, she will be coached to say all the right things initially, but she has no depth in conservative judicial philosophy. If she wilts under questioning, the conventional wisdom might be that the principles themselves were indefensible.

There is no good reason to keep going down this road other than the sheer stupid force of inertia, i.e. this is the nomination, so we're stuck with it. Indeed, if Senate Republicans and conservative lawyers were being candid about their views of this nomination, it probably would already have sunk. This moment calls for leadership from Republican senators, who should go to the White House and insist that this nomination will not work and should be withdrawn. The White House is too insulated and reflexively defensive (note President Bush's pique yesterday when asked about criticism of Miers) to figure this out on its own. Is this a difficult message for anyone to deliver? Yes, but that's why we have senators and not White House automatons occupying the upper chamber of Congress....

It is understandable that Republican senators want to be loyal to an embattled Administration. But what the President needs most right now is friends [as opposed to bootlicking sychophants (are Hugh Hewitt's ears burning?)], friends who will do him the service of telling him the truth, even when it’s inconvenient. Bush's stubbornness and willingness to stick by associates can be valuable qualities, but not when they prevent him from realizing a mistake or seeing what an awful position he has put his loyal White House counsel in....

A Miers withdrawal will stop the bleeding. It will seem a blow to the White House at first, but soon enough people will forget — how many people remember Bernie Kerik? — and the focus will become the next nominee. If that nominee is of the caliber and has the beliefs we have come to expect from other Bush judicial nominees, conservatives will rally around him or her, and the White House and its allies can unite in a clear fight to transform the Court.

Charles Krauthammer may have the best solution of all:

We need an exit strategy from this debacle. I have it.

Lindsey Graham has been a staunch and public supporter of this nominee. Yet on Wednesday he joined [Kansas GOP Senator Sam] Brownback in demanding privileged documents from Miers' White House tenure.

Finally, light at the end of this tunnel. A way out: irreconcilable differences over documents.

For a nominee who, unlike John Roberts, has practically no previous record on constitutional issues, such documentation is essential for the Senate to judge her thinking and legal acumen. But there is no way that any president would release this kind of information - "policy documents'' and "legal analysis'' - from such a close confidante. It would forever undermine the ability of any president to get unguarded advice.

Which creates a classic conflict, not of personality, not of competence, not of ideology, but of simple constitutional prerogatives: The Senate cannot confirm her unless it has this information. And the White House cannot allow release of this information lest it jeopardize executive privilege.

Hence the perfectly honorable way to solve the conundrum: Miers withdraws out of respect for both the Senate and the executive's prerogatives, the Senate expresses appreciation for this gracious acknowledgment of its needs and responsibilities, and the White House accepts her decision with the deepest regret and with gratitude for Miers' putting preservation of executive prerogative above personal ambition.

Faces saved. And we start again.

I am now convinced that John Tabin is right - the Miers nomination is doomed. Just behold these fresh ill-winds (via CQ):

The Supreme Court nomination of White House counsel Harriet Miers faced new and urgent troubles yesterday, with speculation mounting throughout the day that at least one conservative Republican senator had made an unsuccessful attempt at getting the White House to withdraw Ms. Miers's name altogether. ...

The complaints have become serious enough that at least one conservative senator is said to have asked White House officials yesterday to withdraw the nominee's name because of a growing lack of enthusiasm for Ms. Miers among Republicans in the Senate.

There's also rising personal risk for the President himself in muleheadly bulldozing Miers forward: the resurrection, like the zombies in Michael Jackson's old Thriller video, of his old friend Ben Barnes and the whole Texas Air National Guard flap via Ms. Miers' work on the Texas Lottery Commission - with a potentially devastating chaser:

Reports filed with the Texas Ethics Commission show that two payments of $70,000 were made to Miers' Locke, Purnell, Rain and Harrell firm in Dallas within a month of each other during the 1998 campaign. Another $16,000 in payments were made between March and December 1999. The 1998 totals dwarfed the $7,000 Bush paid Miers' firm during his first run for governor in 1994, and are extremely large for campaign legal work in Texas, an expert said.

"I'm baffled," said Randall B. Wood, a partner in the Austin firm of Ray, Wood and Bonilla, and former director of Common Cause of Texas. "I've never seen that kind of money spent on a campaign lawyer. It's unprecedented."

These payments are sure to be used by the Democrats to depict Ms. Miers as then-Governor Bush's fixer, hired to help keep Barnes quiet about the TANG allegations in the midst of both a gubernatorial re-election campaign and contemplated presidential bid two years later.

And so there are pretty much only two remaining likely outcomes for the Miers hearings: her humiliation and rejection on the merits, or a partisan circus, humiliation of both Miers and the President, and her rejection on that basis. And frankly, in my mind this goes way, WAY beyond vetting. Dubya shouldn't need an assistant White House counsel half-assedly checking Miers out behind her back to tell him about these ticking time bombs just waiting to go off. It's not a question of whether there are plausibly innocuous alternative explanations for these vulnerabilities; they're vulnerabilities not because the Dem spin would be true, but because the Dems can spin them at all, and certainly more than enough to make the confirmation of "his girl" a practical impossibility. And the biggest irony in a whole forest of them is that he can't count on the Right to help him fight back against such lowball gambits because he and his "agents" have done their level best to alienate the GOP public relations "infantry." As David Keene said two weeks ago, this is Bush's fight, not ours.

That is why there is a "growing lack of enthusiasm" for Miers among Senate Republicans. She was selected precisely to avoid a fight, and the White House's mountain of miscalculations has now guaranteed one, on the worst possible ground, with the weakest imaginable champion. Bush has largely disarmed his Senate "troops" yet is demanding that they fight for Miers to the political death with the '06 mid-terms - already a dicey prospect for the GOP - only a year away. A clarion call that is easy for him to make, since he's not running for anything again and will be out of office in three years and change either way, while GOP senators aspire to stick around, and wield majority power, long after Dubya's gone.

The interests of the White House and Senate Pachyderms, in other words, diverge on this nomination. And the document demand from Senators Graham and Brownback is the warning flag that it would be very much in the interests of both the President and his personal attorney to take seriously and heed.

I agree with Mr. Krauthammer's preamble sentiments. As I've said before, I have nothing against Harriet Miers. I'm sure she's a very nice Christian lady and a good, kind, and loyal friend to George Bush. And I harbor no desire to see her nationally humiliated. But that's what's going to happen to her if the President doesn't withdraw her SCOTUS nomination.

Whether the easy way or the hard way, Harriet Miers is not going to make it to Olympus. Charles Krauthammer has suggested, and Senators Graham and Brownback have implimented, the easiest way the White House is ever going to get. The degree to which the President recupricates Ms. Miers' friendship and loyalty will determine whether or not he takes it.

UPDATE 10/21: Add George Will to the list - emphatically.

UPDATE II: Stanley Kurtz:

Even so, it was clear in that [Bush-Gore] debate that the President opposed the sort of race and gender set-asides that Miers enthusiastically endorsed. I still remember that moment in the debate, and how important it was to my support for the President. It gave me hope that we would indeed get justices in the mold of Scalia and Thomas, the sort who would clearly oppose the de facto quota system that affirmative action has become. Given what we've learned about Harriet Miers "passion" for racial quotas, I think it has to be conceded in nominating her, the President is reneging on a critical campaign promise. I strongly oppose her nomination.

I'll keep bumping this post to near the top as the end for this nomination continues to approach, in the hopes that it can end with a lot more dignity than accompanied its conception and marketing efforts.

UPDATE III: Jonah Goldberg joins the party, and he brought Cosmo with him!

My official position on Miers has been to criticize the selection, but give her the benefit of the doubt until the hearings. In other words, bad pick but she's the nominee so let's give her a shot.

No more.

After reading this story I'm officially against Miers. I'm with the Editors, Will, Frum, and Krauthammer [and the rest of the gang linked above - plus your humble, gracious host].

It's not just that Miers was in favor of racial quotas - we'd pretty much known that for a while. It's the fundamental confirmation that she's a go-along-with-the-crowd establishmentarian. The White House says that her enthusiastic support for goals, timetables and quotas at the Bar Association says nothing about her views on government race policies. Yeah, right. She simultaneously thought what she was doing was great and important while also believing it would be unconstitutional if the government did the same thing.

The White House says she's an unchanging rock of principle. Uh huh. So have her opinions held constant since the early 1990s? Or have they shifted with the wind? If she's a rock, I don't want her. If she's a weather vane, I don't want her.

I just don't want her.

Start over.

Is your pride really worth a political Katrina with your White House sitting below sea level already, Mr. President?

Well, is it?

Hey, Cosmo, get off that couch! My wife just cleaned that thing....

UPDATE 10/23: Now even Brother Meringoff, a staunch Miers-backer, shows signs of weakening....

But not Hugh Hewitt, who just refuses to come in off that ledge. Now the man who denounces as "elitists" anybody who dares argue that the SCOTUS is not an entry level job (at least where Harriet Miers is concerned) is arguing that "only a highly educated legal elite is qualified to judge Miers" on her wholesale support for racial quotas.

Let the record show, lest any confusion linger from my last less than savory comment about Double-H, that I don't think he's ingesting "adult substances." And I'm even willing to go part of the way with Stanley Kurtz' comment that "He’s played a tough but important role by holding up the President’s side in this debate–and he’s done so honorably." But he's done so with such a stubborn, irritating, unsufferable ignorance (it could hardly have been otherwise, given the weakness of the President's side of the Miers debate, really...) that, in all candor (and not that this will matter one jot or tittle to the direction of the Blogfather's career track), it will be a long, long time before I again regard Hugh Hewitt as a credible source of conservative commentary on most anything. He's shown himself to be a party man (feel free to insert the four-letter "h" word if you like) through and through - even to the point of becoming a rank and tiresome hypocrite.

And that's truly a shame.