Bush's next choice could define his presidency

THE ISSUE Harriet Miers has withdrawn her nomination for a seat on the Supreme Court.

WHEN President Bush picked the woman who had been his personal attorney and a longtime adviser as his nominee for the Supreme Court, he invited the turmoil that culminated in her withdrawal yesterday.

Her scant courtroom experience and lack of a "paper trail" that could testify to her intellectual and legal skills left the Senate Judiciary Committee with few options but to inspect the most important work of her career -- that of serving the president.

However, to believe Harriet Miers stepped away from her nomination because of an intractable battle over executive privilege would be to deny the extreme political pressure the president's conservative base placed upon him.

Unprepared to take on his own party at a low point of his presidency, Bush -- after getting word from Senate leaders that they did not have the votes to confirm -- agreed to her decision to pull out.

The president, who has shown remarkable resiliency through other crises, should step back, take a deep breath and use this opportunity to place someone worthy of a lifetime appointment to the high court, someone whose abilities, temperament and philosophy are equal to those of his first court nominee, Chief Justice John Roberts.

Whether Bush stands up to party critics, especially those in the far-right camp who ferociously opposed Miers, could define his strength as a leader. Though they wrongly believe that they are owed a nominee who shares their creed, they also should be mindful that an idealogue would spark an outcry from Democrats and GOP moderates and probably result in a filibuster. Such a battle would further debilitate Bush's presidency and is better avoided.

Miers' fitness was not the only issue at play in her undoing; the rough threads of politics unraveled her nomination, as well. With next year's midterm elections in mind, many Republicans feared a split in the party would dilute their numbers and weaken their hold on Congress.

The tipping point came when Senate Judiciary Chairman Arlen Specter, a moderate Republican, made it clear he would ask questions of Miers that would "cross the red line," Bush's term for defining what he claims are privileged matters. Specter's inquiry was not unreasonable in light of Miers' work: what standards she would set for recusal in cases involving the administration, her role in setting policy on treatment of Guantanamo Bay detainees, how much deference she would allow toward her patron and her ability to rule independently.

As he casts about for another nominee, Bush has to take these issues into account. Choosing another close associate, such as Attorney General Alberto Gonsalves, would raise the same problems.

It is puzzling why Bush and his well-disciplined group of counselors did not anticipate the discord Miers' nomination would provoke. The ham-handed campaign to assure conservatives of her credentials with whispers and winks failed to satisfy and at the same time disturbed party moderates. Efforts to shade the opposition as sexism and legal elitism failed to gain traction.

With Democrats sitting on the sidelines, the president is unable to point to the usual suspects for Miers' undoing. Indeed, it was his own disciples who brought him this defeat.