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Charles Krauthammer and the Principle of Convenience

Charles Krauthammer is a man of principle. It is unfortunate that the main principle he espouses is political convenience. Take, for instance, his position on judicial nominees.

Krauthammer was a leading critic of Democrats’ use of the filibuster to block a few of President Bush’s judicial nominees. In a column entitled Nuclear? No Restoration, Krauthammer argued in favor of a parliamentary maneuver (the nuclear option) that would eliminate the use another parlimentary maneuver (the filibuster) to block judicial nominees. Krauthammer wrote:

They (Republican Senators) have a perfectly constitutional, perfectly reasonable case for demanding an up-or-down vote on judicial nominees… You certainly do not filibuster judicial nominees who would otherwise win an up-or-down vote.

When the Gang of 14 defused the nuclear option, Krauthammer was livid. In a column entitled Profiles in Flinching, Krauthammer lambasted the deal:

On Monday Republicans were within hours of passing a procedural rule that would have eliminated the Democrats' unprecedented use of the judicial filibuster. It would not only have freed from filibuster limbo seven Bush nominees to the appeals courts, but it would also have ensured future nominees, particularly to the Supreme Court, up-or-down votes.

Then the Republicans flinched.

Krauthammer was in favor of confirmation of the blocked nominees. It was convenient to him to advocate the principle that judicial nominees, “particularly to the Supreme Court,” not only deserved an up or down vote but that one was constitutionally required.

One of the blocked nominees was Miguel Estrada. Democrats demanded production of documents written by Estrada when he was in the Solicitor General’s office. When the administration refused to produce the documents, Democrats prevented confirmation by use of the filibuster.

Now, President Bush has nominated Harriet Miers to the Supreme Court. Krauthammer opposes that nomination. He wrote a column entitled Withdraw This Nominee.

Most recently, Krauthammer has found a way to put a brave face on the withdrawal of the nomination:

Finally, a way out: irreconcilable differences over documents.

For a nominee who, unlike John Roberts, has practically no 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.

That 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's putting preservation of executive prerogative above personal ambition.

Faces saved. And we start again.

So, let’s see if we can discern the principle Krauthammer applies to judicial nominations. First, he decries the use of a parliamentary maneuver, the filibuster, when it is used to block nominations he favors. He supports the use of a parliamentary maneuver, the nuclear option, when it would result in confirmations of nominees he favors.

He thinks that it is important and, indeed constitutionally required, for a judicial nomination to receive an up or down vote when he favors the nominee. When he opposes a nomination, he calls for withdrawal of the nomination without the need for an up and down vote.

When Democrats use a dispute over the production of documents as an excuse to block a nomination Krauthammer favors, he is prepared to go nuclear. Nonetheless, since he opposes the Miers nomination, he advocates using the excuse of the failure to produce documents as a way to prevent an up or down vote on her confirmation.

Krauthammer’s principle is clear. He is for or against whatever it takes to confirm the nominees he favors and to prevent confirmation of those he opposes. It is the principle of convenience.

Posted by Dwight Meredith at October 21, 2005 11:15 AM