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The Miers Conspiracy Theory

Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.

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.


If Miers is the historical loser in this latest saga, O'Connor is the practical loser. She now has to stay at a job she has wanted to leave now for quite some time.

If the president picks a doctrinal conservative to replace Miers, the theory will gain some traction. If he picks a more centrist jurist to replace the centrist O'Connor the theory will fall apart. If he picks a conservative candidate in the mold of Justice Antonin Scalia, Democrats will howl that the pick is a paean to the Republican right. If he picks a more moderate choice Republicans will howl, as they did with Miers in spite of her anti-abortion views, that the president is acting wobbly when he should be most strong.

If, in terms of decorum and political grandstanding, you look at the Roberts nomination at one end of the scale and the Miers nomination at the other, we are sure to get a candidate in the middle. Someone much less universally respected than Roberts but much more universally accepted than Miers.

Here's my best guess on what we'll likely see: the president will nominate a staunchly conservative female federal appeals court judge, someone who thus has a lot of behind-the-bench experience but who is immune from charges of political cronyism. There are plenty of such candidates out there.

When the Miers' nomination first was announced, and when the first voices of doubt were raised about her qualifications, I listed several such female judges, any of whom would have made a more logical and defensible choice for the Supreme Court. All of these women pass the test that Miers could not — all of them bring to the job interview the necessary academic, intellectual, and experiential qualifications. All have top-shelf minds and temperaments. And none have top-level access to the White House inner sanctum.

How about 6th U.S. Circuit Court Judge Alice M. Batchelder, 60, who has served on the bench since nominated by the first President Bush in 1991?

How about 9th U.S. Circuit Court Judge Conseulo Callahan, whom the current president appointed to the bench two years ago, at roughly the same time Chief Justice Roberts first made his way onto the judiciary?

What about 5th U.S. Circuit Court Judge Edith Clement, an appointee of the current president, who also is a member of the conservative Federalist Society?

Or 2nd U.S. Circuit Court Judge Sonia Sotomayor, first nominated to the bench by Bush the father?

These are just a few of the less controversial selections the president could make.

Such a choice would make the nominee immune from two of the most serious charges against Miers and, thus, significantly limit the arguments of opponents of her candidacy.

If this happens, we then would see the political battle over substantive legal issues that we never saw in full either with the Roberts' nomination (on account of his stellar reputation and obvious intellectual brilliance) or the Miers' nomination (on account of her failure to pass even basic tests of qualifications and experience).

We will see a fight on the merits instead of a fight over process; a

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