End of the road

ne news outlet called them "drumbeats"-the din of doubt surrounding President Bush's nomination of Harriet Miers to the U.S. Supreme Court. The pounding stopped on Thursday, Oct. 27, when Ms. Miers withdrew herself from consideration, citing concerns about executive privilege.

"I have been informed repeatedly that in lieu of records, I would be expected to testify about my service in the White House to demonstrate my experience and judicial philosophy," wrote Ms. Miers, who has served since 2001 as Mr. Bush's staff secretary, deputy chief of staff, and White House counsel: "Protection of the prerogatives of the Executive Branch and continued pursuit of my confirmation are in tension. I have decided that seeking my confirmation should yield."

Some crucial senators had begun insisting that Ms. Miers, without a written judicial record because she's never served as a judge, prove her mettle by unveiling her work as White House counsel. But such demands meant she would have to breach executive privilege-a Supreme Court--recognized principle designed to ensure that U.S. presidents can receive frank and confidential advice. Senate Judiciary Committee chairman Arlen Specter (R-Pa.) on Oct. 26 told Ms. Miers that he expected her to discuss at length some of the Constitution-related decisions she had helped Mr. Bush to make.

The same day, Louisiana Republican Sen. David Vitter also said he wanted the White House to provide "more written material that predates the nomination," adding that such information was "extremely important" to his supporting Ms. Miers.

The "executive privilege" concerns were real, but they also created an opportunity to leave behind a nomination that had fractured conservatives almost from its beginning. East Coast elites immediately opposed it based on Ms. Miers' resumé, which lacked a blue-blood law school, bench time, and a specialty in constitutional law. (Prior to her White House service, SMU graduate Miers worked mainly as a corporate attorney and was the first woman president of the Texas Bar Association.)

Some social conservatives supported the Miers nod based on Mr. Bush's track record in nominating constitutional originalists and on White House assurances that Ms. Miers fit that mold. Christian pro-family groups, meanwhile, split on the nomination, with the American Center for Law and Justice and Focus on the Family Action supporting, Liberty Counsel opposing, and Family Research Council (FRC) saying it would wait and see.

Early on, though, an ominous sign for the health of her nomination emerged: Several Senate Republicans, including pro-family advocates like Sen. Sam Brownback (Kan.), expressed reservations. On Oct. 25 Sen. John Thune (R-S.D.) called the GOP's attitude toward her "a question mark. There [are] an awful lot of Republican senators who are saying we are going to wait and see."

Judiciary Committee member Lindsey Graham (R-S.C.) added, "She needs to step it up a notch."

On Oct. 26 The Washington Post made public the contents of speeches Ms. Miers had given during the 1990s. In 1993, speaking to a Dallas women's group, she commented on "the attempt to once again criminalize abortion" and concluded that "self-determination makes sense." The words criminalize and self-determination set off alarm bells among some. James Dobson, an early Miers defender, withdrew his support, and FRC President Tony Perkins spoke of "troubling questions." Concerned Women for America called for President Bush to withdraw the nomination.

Manuel Miranda, former judicial confirmation counsel for Senate Majority Leader Bill Frist, said Ms. Miers' withdrawal is "good news for the president and his party." The development, he said, may spare Mr. Bush the political embarrassment of a potential Democratic filibuster-or worse, that Republicans, lukewarm and disunited over Ms. Miers, wouldn't move to break the filibuster on her behalf.

Going forward, conservatives hope that Mr. Bush will replace Ms. Miers with an originalist who has a clear public record. "The president needs to pick a known conservative," said American Center for Law and Justice chief counsel Jay Sekulow, who supported the Miers nomination. "He needs to pick someone we don't have to sell quite as hard."

And Richard Land, president of the Southern Baptist Convention's Ethics and Religious Liberty Commission, was pensive: "I am saddened that this good and decent public servant has decided to withdraw her nomination. . . . Harriet Miers is yet one more victim of a process that has gone seriously awry in the past two decades."