"There is no graceful out. That's the problem."
Miers could issue the following statement, with President Bush and Circuit Judge Janice Rogers Brown at her side:
"Upon prayerful consideration, I now believe that my level of experience on constitutional issues may not be adequate for a U.S. Supreme Court Justice, and I have thus requested President Bush to withdraw my nomination to the Supreme Court. President Bush responded that he believed that I would bring a fresh perspective to the federal judiciary, and agreed to remove my nomination to the Supreme Court on one condition: That I would accept nomination to fill a vacancy in the Court of Appeals for the District of Columbia, and to consider a possible Supreme Court nomination after I have gained experience on the judge's side of the bench. After further thoughts and prayers, I have agreed to President Bush's request."
President Bush could then reiterate what Miss Miers said, and introduce Judge Brown as his nominee to the U.S. Supreme Court.
GOP Senators would accept Miss Miers as a nominee to the DC Circuit, and would of course accept Judge Brown's nomination to the Supreme Court, and Democrats would be disarmed in their fight against Brown because (i) she has had plenty of judicial experience, so she will appear to be an anti-Miers, and (ii) they confirmed her to the DC Circuit just a few months ago as part of the Gang of 14's deal, and if her nomination wasn't an "extreme circumstance" then, it shouldn't be now.
The one problem with this face-saving move would be that Democrats could argue that Miers's decision to accept nomination to the DC Circuit but not to the Supreme Court proves that the standards for the Supreme Court are much higher than for the DC Circuit, and that Judge Brown meets the lower standard but not the higher. Such a position would be illogical, since Miers would have been referring to a difference in the *experience* requirement, and the adequacy of Judge Brown's experience is incontrovertible. But how could a judge be "too conservative" for the Supreme Court if she isn't "too conservative" for the DC Circuit?
BTW, I don't think that any of the above will occur, but I sure hope that Miss Miers is replaced with a qualified nominee of unquestionable judicial conservatism.
There is no graceful out. That's the problem The most conservative Senators need to join with Specter and the group needs to have a long and very confidential talk with Bush. They need to clearly lay out the situation. Miers can then announce that she has talked with all concerned and agreed to withdraw in the interest of gaining more judicial experience.
In the same presentation, Bush can then announce her nomination for a lower court position. The Senators can all then make supportive comments.
It's not perfect, but it will work.