Anyone hoping (or fearing) that Attorney General and former White House Counsel Alberto Gonzales will be the next nominee for the Supreme Court can rest assured that he will not be. Gonazles' White House papers will be sought by opponents of certain administration policies and the official excuse for Harriet Miers' withdrawal assures that access to those papers won't be granted. There's enough bi-partisan interest in the prisoner abuse issue alone to guarantee that privilege will be a blocking issue for Gonzales.
The New York Times wrote this about the withdrawal:
Mr. Bush issued a statement in which he accepted Ms. Miers's decision with regret, praised her "extraordinary legal experience" and her character and said he agreed that senators were intent on gaining access to internal White House documents about her service. Surrendering such paperwork would undercut any president's ability to get frank and unfettered advice from key aides, Mr. Bush said.
"Harriet Miers's decision demonstrates her deep respect for this essential aspect of the Constitutional separation of powers - and confirms my deep respect and admiration for her," the president said. Mr. Bush said he would announce a new nominee "in a timely manner."
Of course, Miers' nomination was really doomed for other reasons: her egregious lack of qualification as a constituional lawyer, and the fact that her rhetoric over the years hasn't toed the conservative line on Roe v. Wade. The latter may be entirely due to her demonstrated lack of eloquence.
I pretty much predicted this outcome. Even before I knew the extent of Miers' shortcomings, the fact that an important part of her paper trail would be covered by either executive privilege or attorney-client privilege was a blatantly obvious stumbling block. With no legal opinions to her name, and even precious few legal arguments -- none on constitutional issues, the only relevant information available would be her White House papers. Shortly after Miers was nominated, I wrote the following:
Any President who nominates his own attorney -- or the attorney for one of his predecessors -- for a Federal judiciary position should, IMHO, be fully prepared to waive any claim to privilege. Why? Because the President works for us. The President's lawyer is our lawyer. We pay her salary, and she doesn't represent the President... she represents the Office Of The President. The DOJ also works for us. The Attorney General and Solictor General are our attorneys. They bring cases on behalf of us... The People. And while the President should be entitled to confidential advice from his attorney, and the DOJ should be entitled to confidnential advice from their attorneys, once a President nominates our lawyer to a Senate-confirmable post, our interest in what our lawyer has done on behalf of our government trumps the President's interest. It trumps any previous President's interest. It trumps the DOJ's interest. Furthermore, if privilege isn't waived for confirmation hearings, and the nominee is approved, the chances are quite high that a conflict of interest will arise in cases that come before the court in the near future, and our interest in knowing the existence and nature of what conflicts are likely to come up trumps the President's interest.
Simply put: the President has his choice of whom to nominate, and if he values his own or his predecessors' privilege over and above the people's right to know what our lawyer has done and where our judges stand on matters that the government has brought before the courts -- or considered bringing before the courts -- then the President should nominate someone who isn't covered by that privilege.