The Miers Conspiracy Theory

Attorney Andrew Cohen analyzes legal issues for CBS News and

Did a lamb just get slaughtered?

Don't believe for a second that concerns about "executive privilege" doomed the Supreme Court nomination of White House counsel Harriet Miers.

The privilege issue is just political cover — a convenient excuse, really — to allow President Bush to do what he had to do to avoid further embarrassment for himself and his buddy.

The Miers' nomination was getting worse, not better, for the White House — everyone knows it — and this dramatic move allows the whole gang to hit the re-set button and start over.

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Miers now devolves into an historical footnote; forever known as a devout woman, a good lawyer, and a loyal political supporter and president's friend who simply didn't come close to having the qualifications necessary to be a Supreme Court justice.

She was second-shelf material seeking a job that demands top-shelf talent. She should never have been asked to take the job, she should never have accepted, and this result is the best the American people could have hoped for.

But now what? Many smart people have suggested to me in the weeks since Miers was nominated that she never was serious candidate for the Supreme Court; that she was, instead, a sacrificial lamb.

Under this scenario, which is only mildly paranoid when you think about it, the president picked Miers knowing that her nomination ultimately would fail but also knowing that in failing the conditions would be riper for the selection of the sort of ultra-conservative "red meat" Supreme Court candidate the president's right-wing covets.

The Miers' nomination, in other words, was designed from the get-go to clear the path for the President's true choice.

Can this be? Why not. Anyone who has read those suck-up notes that Miers wrote to President Bush (they've been published and posted everywhere, in case you are wondering) wouldn't have too hard a time believing that she would be wiling to sacrifice her own professional reputation for all eternity to further the political goals of the man to whom she has long hitched her star.

And I'm not willing to blame the president even if this Machiavellian scenario is true; it's quite conceivable that Miers herself volunteered to take the hit for the team. If we learned anything about her during her aborted confirmation process — apart from the fact that she doesn't know enough about constitutional law to be a Supreme Court Justice — we learned that she is a team player.

We'll know if this dark theory is true as soon as the president announces his next choice to replace the retiring Associate Justice Sandra Day O'Connor, who must be screaming into her robe these days as she sees pass by another opportunity to leave the bench.

The Miers' withdrawal, incidentally, makes it much more likely that Justice O'Connor will serve out the larger part of this term and be a part of some of its more controversial rulings, including the physician-assisted suicide case out of Oregon that was argued earlier this month.