Supreme Court nominee Harriet Miers withdrew from the confirmation process Thursday morning after heavy criticism from both Democrats and Republicans, including far-right conservatives looking for a candidate that shares their views. Noah Adams speaks with Slate legal analyst Dahlia Lithwick about Miers' decision and its political implications.
NOAH ADAMS, host: From NPR West, this is DAY TO DAY.  I'm Noah Adams.</s>NOAH ADAMS, host: Our lead story is that Harriet Miers has withdrawn her candidacy for the      United States Supreme Court.  On the floor of the Senate earlier today,      Senate Majority Leader Bill Frist read from a written statement by Miers      outlining her reasons for withdrawing.</s>Senator BILL FRIST (Republican, Tennessee): `Repeatedly in the course of      the process of confirmation for nominees for other positions, I have      steadfastly maintained that the independence of the executive branch be      preserved and its confidential documents and information not be released      to further a confirmation process.  I feel compelled to adhere to this      position, especially related to my own nomination.  Protection of the      prerogatives of the executive branch and continued pursuit of my      confirmation are intentioned.  I have decided that seeking my      confirmation should yield.'</s>NOAH ADAMS, host: This decision comes after heavy criticism of her nomination and      questions about her suitability for the job.  And with us now to talk      about all of this is Dahlia Lithwick, a legal analyst for the online      magazine Slate and for DAY TO DAY.  This issue, Dahlia, of executive      privilege, could it be a pretext here do you think?</s>DAHLIA LITHWICK reporting: Oh, absolutely, Noah.  I think this was always lurking under the surface.      The only reason it came out now I think is because the nomination was is      in such trouble.  This was an idea floated by Charles Krauthammer, the      columnist, suggesting this was the, quote, "exit strategy" that could get      the Bush administration and Harriet Miers out and still save face rather      than have a fight about her character and qualifications.  We could have      a fight about constitutional prerogatives, whether the executive branch      or, in fact, the Senate Judiciary Committee could see those papers.  It's      a much more attractive fight than the fight about whether Harriet Miers      is a flaming liberal.</s>NOAH ADAMS, host: Well, hardly a flaming liberal, but, nonetheless, this nomination      seemed to be in trouble almost from the time it was announced.  Remind us      of the early criticisms of Miers and where they came from.</s>LITHWICK: The first two strains of criticism actually came from the far      right, and they were, one, that she was a crony, that she had no      experience other than having essentially been in George Bush's employee      for the last 10 years and was fiercely loyal.  And as you'll remember,      there was a lot of talk--this is what the Federalist Papers warned      against--the president can't just, you know, pick his best friends and      put them into office.  The other thing that was immediately a problem      with this nomination was that she had no record.  The president tried to      talk in code about her.  He talked a lot about her heart.  He talked      about her religion, but he had no concrete evidence to point to the fact      that she was going to be the sort of reliable conservative that the far      right wanted.  So essentially they were expecting a far-right sort of      activist who was going to get on the court and overturn Roe v. Wade, and      instead of giving them that, the president gave them someone who he      promised, based on his own knowledge, would do that and that just was      never enough.</s>NOAH ADAMS, host: Now a deep breath at the White House.  There are other      difficulties there at the end of this week, but when do you expect a new      name to come forward and who do you think that might be?</s>LITHWICK: The White House is saying it's going to be shortly.  Certainly      their short list now with Miers' name off it is still in place.  I think      that there's a good possibility, given that the base, the far political      right, really sort of smelled blood in the water and now they know how      much power they have over this nomination.  They're going to clamor for      the person they wanted in the first place.  So there's a very good chance      that we're going to see a Priscilla Owen from the 5th Circuit, a Janice      Rogers Brown from the DC Circuit, a Michael Luttig from the 4th Circuit.      All of those are names of people who are extremely reliable, predictable      conservatives who have said in one way or another and have long judicial      records to show that they're going to sort of start that right-wing      counter revolution on the Supreme Court that Bush's base has been waiting      for.</s>NOAH ADAMS, host: In the meantime, Sandra Day O'Connor has to work a few more      months there.</s>LITHWICK: That's right, Noah.  She's certainly on the court, but it's      important to understand that once her replacement is seated, she can't      vote on cases.  Her replacement is going to have a tough time voting      because they didn't hear oral arguments.  So there's a real possibility      that O'Connor will be on the court and not voting, that the replacement      will have to rehear a lot of key cases later on this year.</s>NOAH ADAMS, host: Dahlia Lithwick, legal analyst for the online magazine Slate and      for DAY TO DAY.</s>NOAH ADAMS, host: Thank you, Dahlia.</s>LITHWICK: My pleasure, Noah.