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I am in D.C. for a day of meetings, and missed most of yesterday's cyberspecultions, though I did get to read Glenn Reynolds new book, which --it will not surprise anyone to learn-- is a great piece of around-the-corner and the next decade analysis.

JetBlue did provide me with the opportunity to watch CNN and Fox throughout the flight, and rarely has the same thing been said so often by so many different people: A fight is coming.

Thus it was great to hear two senators who are often the subjects of suspicion on the right each make statements of the sort that will have to be rfepeated again and again.

From Senator Specter:

"You have both sides poles apart, and insistent on finding some answer to that question in advance of the hearing, which no one is entitled to. Guarantees are for used cars and washing machines, not Supreme Court justices."

From Senator Graham:

Well, number one, we're not going to let Senator Schumer define mainstream conservatism. He's my friend, but that's not going to happen. Here's why I was part of the Gang of the 14, and I'm going to lay it all out on the table for you on a Sunday morning. I'm not for filibustering. I think when you start ideologically driven filibusters that are partisan, you erode the people who want to serve over time in the judiciary because it becomes reprisal politics. `We're going to pay back the Democrats.' So partisan filibusters based on judicial philosophy or ideology erode the judiciary, weaken the presidency and hurt the Senate. So I wanted to stop that and we did. We had a chance to start over.

But here's what you're going to get, Chuck. You're going to get a solid conservative. He ran on the idea that `I like Scalia and I like Thomas and I'm going to send a conservative up.' He is not going to pick someone in the mold of Sandra Day O'Connor because we tell him he has to. There's no ideological swap test here. He's going to do what he said he did in his campaign. Roberts was in that kind of mode. Alito, Luttig, all these people are solid conservatives, and if they're filibustered based on ideology and philosophy, that's setting
aside an election and the filibuster will not stand....

An extraordinary circumstance to me has never been about ideology or philosophy. It's got to be about character, qualifications, because if we make it about ideology and philosophy, we've taken the power of the president away.

When the nominee is announced today, the discussion of his or her background and credentials has got to emphasize that no matter who it is, they have got to be accored an up-or-down vote on the Senate floor. From the start, Republican senators have to be pushed to agree that this is their expectation.

There were seven GOP senators who joined the Gang of 14 --Senators McCain, Warner, Snowe, Collins, Chafee, Graham and DeWine. In addition, Senators Hagel and Specter were believed to be wobbly on the constitutional option.

If these senators declare early and often that a filibuster against a nominee on ideological grounds will oblige them to support the constitutional option, and to explain over and over again why, the debate will be won before it begins.

But if six of the nine remain silent the speculation about their motives will divert attention from the nominee's qualifications and allow the idea that the filibuster as legitimate to gain traction.

WEEKEND UPDATES below.

The encouraging news about the new short list indicates that the president is willing to run the opinions gauntlet, a preview of which we received in the attention paid my "hapless toad" case during the Roberts' hearings. Chief Justice Roberts only had a couple of years worth of opinions, though, so the distortion level we saw in September was significantly less than what we will witness when a long-serving nominee emerges. I have long thought that this was the single biggest obstacle to a set of candidates moving to the top. Opinions are often difficult to explain to laymen, easily distorted by opponents, and mangled --intentionally or otherwise-- by media.

Both Judges Alito and Luttig (and others) have a large set of drawers full of opinions they issued, and these will all be on the table if either man is nominated. The advantage of a McConnell over a Luttig was simply skipping this parsing, but the advantage of Luttig over all others is a sort of jovial toughness combined with deep familiarity with D.C. thrust and parry.

There are also the factors of age --51-- which would promote Judge Luttig over most others, and his long and close friendship with the new Chief Justice --which I think would be a significant advantage short and long term.

But it is really temperment that gives Luttig a special attraction. Both the Chief Justice and Judge Luttig are proteges of former White House Counsel Fred Fielding, whom I have never seen perplexed or perturbed, even during his time on the 9/11 Commission when things were getting dicey with his fellow commissioners. Fielding's aplomb has been absorbed by both the Chief Justice and Judge Luttig. It is a marvelous quality in a witness having to listen to Patrick Leahy, Joe Biden etc go on for hours and hours.

The fact that Luttig has been around the D.C. wars for literally decades has two other significant advanatges.

First, he knows walking in what is coming and he will not flinch. In fact, he will smile throughout. Nothing will surprise him.

Second, he has friends on the other side of the aisle --good friends, and help unlooked for could arrive early and perhaps even often in the process.

The Farragut Option. If the president introduces Judge Luttig as the nominee, there will be no doubt about getting the band back together.

UPDATE #1:

Judge Luttig has judicial courage. Look at this Nat Hentoff column on a Luttig opinion in a case opening a publisher to civil liability for publishing an assassin's manual.

And on the Global War on Terror, Luttig's opinions in the Hamdi cases (where he dissented) and in Padilla this summer should give the president confidence that this justice would fully understand the war, and the need for the SCOTUS to move very carefully through those decisions related to it. I believe the president's concern over SCOTUS review of GWOT-related cases in large part accounted for his nomination of Ms. Miers. Judge Luttig has been a model of informed deference to the executive on war issues, and of the implications of various rulings. From one of the Hamdi rulings by Judge Luttig, in this instance his dissent from a denial for rehearing en banc:

But as the panel disowned its promise to the detainee to provide him meaningful judicial review, so also did it disown its promise to the Executive to accord him the substantial deference to which he is constitutionally entitled for his wartime decisions as to who constitute enemies of the United States. The panel promised the Executive that the Judiciary would not sit in full review of his judgments as to who is an enemy combatant of the United States, but it adopted a rule that will henceforth do just that, cast the Judiciary as ultimate arbiter, in each and every instance, of whether the Executive has properly so classified a detainee.

Upon a moment’s reflection, it is apparent that the rule of law that
was fashioned by the panel professedly in the name of deference to
the Executive, and that now binds us, is, in application, a rule of no
deference at all. For counsel must now be provided and judicial
review had of the Executive’s determination that one is an enemy
combatant in every instance in which the petitioner but refrains from
affirmative concession that he was seized in a foreign combat zone.
The Executive’s undeniably important interests in the prohibition of
access to detained enemy combatants for reasons of national security
and in the conduct of war free from fear that it will be summoned to
court to answer to the Judiciary for its enemy designations, thus, are
uncomfortably protected by little more than the hope (vain after the
court’s opinion, if not before) that the habeas petitioner will gratuitously or foolishly concede that his seizure occurred in a foreign zone of combat.

UPDATE #2

A pre-emptive cyber-slamming of Judge Luttig is underway in the comments at UnderneathTheirRobes and in the comments section of ConfirmThem.com. The ripple effect of anonymous commentators is quite small --as befits their honor-- but just in case you were wondering about Judge Luttig's concern for precedent, read his dissent in Gibbs v. Babbitt, where he writes about the SCOTUS cases on the limits of the Commerce Clause in regard to the the federal Endangered Species Act:

The majority of the Supreme Court in Lopez and Morrison has left no doubt, however, that the interpretation of this clause of the Constitution, no less so than any other, must ultimately rest not with the political branches, but with the judiciary. See Lopez, 514 U.S. 549, 557 n.2 ("[W]hether particular operations affect interstate commerce sufficiently to come under the constitutional power of Congress to regulate them is ultimately a judicial rather than a legislative question, and can be settled finally only by this Court.") (quoting Heart of Atlanta Motel v. United States, 379 U.S. 241, 273 (1964) (Black, J., concurring)); Morrison, 2000 WL 574361, at *10 n.7 ("Departing from their parliamentary past, the Framers adopted a written Constitution that further divided authority at the federal level so that the Constitution's provisions would not be defined solely by the political branches nor the scope of legislative power limited only by public opinion and the legislature's self-restraint. See, e.g., Marbury v. Madison, 1 Cranch 137, 176 (1803) (Marshall, C.J.).").

Accordingly, I would faithfully apply in this case the Supreme
Court's landmark decisions in Lopez and Morrison, as I would in any
other case. The affirmative reach and the negative limits of the Commerce Clause do not wax and wane depending upon the subject matter
of the particular legislation under challenge.

Judge Luttig has faithfully applied the rulings of SCOTUS in all situations. Senate critics like Slow Joe Biden will not be able to accuse him of inconsistent application of higher court precedents. Rather, as a circuit court judge, he has faithfully applied the law.

"Accordingly, I would faithfully apply in this case the Supreme
Court's landmark decisions..." is the best testament to an appeals court judge. Not only is it what they should do, it is what they must do. To faithfully apply the law is the job of the appellate judge. Judge Luttig --and Judges Alito and Jones-- have done so over many years. The left and their occasional allies on right cannot be indulged criticisms based on their desire for, in the former case, a particular result, or in the latter, a crusade rather than the sober attachment to the rule of law.

is the bulldog, Orel Hershiser.

That's what ConfirmThem is hearing. He would be a great choice, as would Judge Luttig, also in the mix. Here's a quick guide to some of Judge Alito's key opinions.

But this president hasn't stopped liking surprises.

Mierony: A category of irony, including all commentary on judicial nominations that is ironic given the source's position on the nomination of Harriet Miers.

Example: Jonah Goldberg's upset with Polipundit's unfairness to the prospect of a McConnell nomination.

Professor Adler thinks I am way off the mark. Mere-Orthodoxy says bull's-eye. K-Lo tags me as a "New York Times kind of conservative." Howard Kurtz gives credit where credit is due.

Everyone can say it isn't raining where they live, but that doesn't mean it isn't raining in a lot of places. Professor Adler needs to go back to The Corner's archive, to October 3, and start reading. (I can't find the Caligula's horse post, but there are plenty of others that will make my point if he will simply read.) ConfirmThem.com has plenty of similar evidence. There is much in the way of responsible analysis, of course, and there is a reality that this week's publication of speeches which is cover for a lot of the neoBorking that happened prior to their publication.

But no fair reader who actually reviews what was written, said, and done over the past three-plus weeks will deny the neoBorking that occurred. It just isn't possible to do so.

As for Matt Anderson's question: A defeat on the Senate floor would have been painful, but also a constitutional result with many upside as clarity about who believes what is almost always a plus in a republic.

Here's my New York Times piece on the Miers withdrawal.

An ally on the losing side, Penraker, is worried that my piece will tip the left to the downside of the Miers' defeat.

I point to DailyKos' post that provides the Dems' talking points which anticipated my argument.

The good news is that none of these senators went public with a demand for withdrawal without an up-or-down vote, and it is crucial that the GOP remains formally committed to that standard.

The damage is that some our most talented pundits will be DQed in future conflicts with Dems.

Will the imminent statehouse races in New Jersey and Virginia suffer as a result of a run of three weeks of incessant blasting of a Bush nominee? Hard to say, but the results cannot be as strong as they would have been, and as proof I offer the negative e-mails at NRO's The Corner. There is a deeply disturbed and disappointed group of GOP voters dismayed by the treatment of Miers. I don't know how big it is --it isn't small-- and I don't know which would have been the less bitter result, but there is no denying the political damage done to the GOP, and in the hands of competent propagandists of the left, this debacle could be costly indeed.

When the next nominee is announced, no matter who it is, it is crucial that those on the right tempted to react negatively for whatever reason at least hold their fire for a few days. A second mugging would more than double the damage done thus far.

Bob Woodward announced that there is "deep mystery here" on Larry King tonight, referencing thre Plame affair. How absurd. Scooter Libby appears to be the only target, and it won't be for "outing" Valerie Plame. John Hinderaker has a great post on this subject.

This seems to me to be about the most obscure kind of Beltway secret handshake game going, with zero traction outside of the fever swamp. If Karl Rove isn't indicted after two years, he is vindicated, period. And Libby's defense will cause a great deal more heartburn to MSM than it will to the White House or the GOP, though as with the beating Miers took, I am saddened that another public servant is going to have to run a different gauntlet because a man of obviously zero integrity took an assignment he ought to have declined given to him because of the certainty he'd bring back what the anti-Bush CIA types wanted.

Lileks (buy his new book) said on the program tonight that it is good to get the third year of a second term over in the first year of the second term. He is right. The president has some big wins in 2005, including the approval of a constitution in Iraq, the elections in Afghanistan, some tort reform, an energy bill, a widely respected choice to succeed Greenspan, most of his appellate judges confirmed and a new Chief Justice as well as a second shot at the O'Connor seat.

In a "bad" year he has accomplished more than Clinton did in eight, he has teed up the ball nicely on social security reform, the struggle with North Korea has not gone south and may be going north, though Iran continues to alarm any reasonable person. Peggy Noonan was right to identify the various perils that plague America and will continue to do so, but her conclusion that "the presidency [is] another institution in trouble," seems far, far too alarmist to me.

And it also undervalues real tragedy.

Which brings me to a wholly unrelated-to-politics note.

I attended today the funeral for a 19 year old Vandy sophomore, a brilliant, beautiful, talented, life-loving and life-celebrating surfer/scholar/sister/daughter. We know her through her equally wonderful sister, and many others through her tremendously giving family. As my wife said to me afterwards, it was the saddest service we have ever attended, but also one of the most uplifting, as her sister's, brother's, and her father's salute to her life --read by his brother as he remains hospitalized from the accident that took her-- reminded the hundreds and hundreds of mourners that Jessica was all about courage and adventure.

This is real tragedy and loss, not its counterfeit, political defeat. We should never confuse the two. Pray for her family, and the families of all who lose a child.

Because the assault from the left on the next nominee is going to be so intense, it makes sense to nominate a judge who has recently been vetted and FBI-checked. Fairly recent Senate hearings are also a plus, as they will demonstrate the necessary ability to handle the heat that is on the way.

Because cases coming before the SCOTUS in the near future include some crucial decisions --including an abortion rights blockbuster that will be argued in late November-- it is very important to get a nominee for whom hearings can be scheduled immediately.

The Gang of 14 must be denied an "extraordinary circumstances" argument, so a recent nominee that was given a hearing and a vote without a filibuster is to be preferred.

A nominee who has fairly recently filled out all the forms and who has some decisions on record but not too many is to be preferred.

And the nominee should be a "base uniter."

I think this gets us to Judge Michael McConnell in a hurry.

If, after conversations with Senators Specter and Kyl, there appears to be no way to rush a nomination in time for the crucial cases, then Judge Luttig or Judge Jones are the other obvious choices, but there will be a lot of vetting time necessary for such a detailed review as both have long records of decisions to review, and my guess is as well that each has given many speeches, which is where the left will be expected to look for their ammunition.

Let me be the first to say that whomever the president nominates, he or she deserves an up-or-down vote in the Senate.

I think Ms. Miers has been unfairly treated by many who have for years urged fair treatment of judicial nominees.

She deserves great thanks for her significant service to the country. She and the president deserved much better from his allies.

In his interviews with David Frost, Richard Nixon declared:

"I brought myself down. I gave them a sword and they stuck it in and they twisted it with relish."

Since the despicable treatment of Judge Robert Bork in 1987, the conservative movement has struggled to restore integrity and decency to the judicial nominatin process, an effort that took on even greater urgency after the savaging of Clarence Thomas in 1991.

Part of that effort involved conducting the confirmation process for President Clinton's two SCOTUS nominees with the sort of attention to procedural fairness and constitutional design that Republicans expected would be shown future GOP nominees.

Another part of that effort to repair what Yale Law Professor Stephen Carter has called the "confirmation mess" was the approach to nominees adopted by President Bush, including resoluteness over a period of years if necessary in the face of political attacks on nominees.

A third part of the effort to depoliticize the law is the rejection of policital attacks on non-partisan prosecutors, and thus the treatment of Peter Fitzgerald by the right has been the opposite of the grotesque slandering of Dean Starr by the left.

Another part of the process of returning the confirmation process to the point where it could function again has been the stalwart defense of a nominee's refusal to answer questions that would require him or her to pledge themselves to results in advance of argument, coupled with a refusal to loot every file of a lawyer's vast archive in the assistance of search-and-destroy tactics of opponents bent on distorting rather than examining a nominee's credentials.

If the conservatives could hold on long enough, and argue patiently with the public over an extended period of time, the tactics of the left --of "the groups," and their Democratic senator puppets, could be defeated.

Two rounds of Senate elections were waged in good part on this very ground, and Senators Martinez, DeMint, Dole, Burr, Chambliss, Coleman, Talent, Vitter, and Thune --to name those that come readily to mind-- won election on the demand for up-or-down votes for all nominees.

In the face of the left's still adamant refusal to reform itself, the Senate edged towards the constitutional option, and was close to the moment --long delayed-- when the process was going to be fixed when Senator McCain undercut almost two decades of work and the Gang of 14 threw the long march back to first principles into disarray.

The Roberts nomination defeated the left because they couldn't find traction for their outrageous tactics, even though they tried. If the Senate wasn't prepared to fix itself and exile the groups or renounce the tactics, the president outflanked them with a nominee of such extraordinary ability that attacks on him were like the proverbial throwing pebbles at a battleship.

The great additional benefit of the Roberts nomination was that it exposed in retrospect the left's deep unfairness because the new Chief Justice had been unfairly blocked not once but twice by Senate Democrats.

Now, however, a big slice of conservative punditry has decided that the long march back isn't worth the risk that Harriet Miers isn't who the president and her close associates say she is. On the basis of a very thin set of papers --some of them distorted, and all of them cherry-picked-- and with an absolute refusal to entertain any of the many arguments and testimonies on her behalf, this caucus has seized on the very tactics most conservatives have long denounced in order to do what?

To deny Harriet Miers a hearing and an up-or-down vote on the Senate floor.

To accomplish this objective, a group of high profile conservative pundits and activists have gone so far as to raises hundreds of thousands of doallrs from secret sources to run hit ads on the nominee in prime time. George Will has taken to denouncing high profile evangelical leaders as "crude." National Review, the oldest brand on the right, allowed its cyber pages to be used to brand the nominee the worst since Caligula's horse and to suggest the president might send up Barney next. A line from a 12 year old speech is offered as a proof text of the nominee's views on abortion despite her unequivocal public support for pro-life causes. The answer to a question in a deposition from even farther back is taken as a token of undying hostility to the Federalist Society despite far more recent and powerful praise she has given the organization and the assurances of its executive director and prominent membership that the idea of hostility is absurd.

Distortion, denial, and damning all in the pursuit of the destruction of a nominee before she has uttered a single word to the Senate.

All of the outbursts of the past three plus weeks are precedents, of course, for future conduct in the judicial wars. People for the American Way is gleefully posting National Review editor Rich Lowry's blasts at Miers, and no doubt filling the files full of blog posts with which to build a case for estoppel the next time this or a future Republican president complains that a nominee isn't being given a hearing or is having his or her record distorted.

One of the great ironies of this disastrous embrace of the tactics of the left is that it comes only weeks and indeed days after repeated warnings by Justice Scalia of just such abuses. Scalia's August 30th Madison Lecture at my law school addressed these issues, and he referred to them on MSNBC as well, answering Maria Bartiromo's question about whether he could be confirmed again with "I don't know, but I wouldn't want to go through it today [laughs]. I’ll tell you that much. It has become politicized."

Yesterday I quoted the Wall Street Journal's quote from the Cato Institute's Roger Pilon:

"This woman has demonstrated almost nothing that would indicate she is either one of us or up to the job." (Emphasis added.)

In reseaching this post, I found Roger Pilon's forward to the latest edition of Supreme Court Review, wherein he writes:

"The problem with going down that political road, however, is its potential for undermining the rule of law, for turning everything into politics. At the extreme, for example, both the president and the Senate might demand that a nominee pass a so-called ideological litmus test as a condition for being nominated or confirmed -- the idea being to try to bind him to deciding future cases in accordance with his answers on the test. Were that approach to prevail -- and we are already part way there -- the independence of the judiciary would be seriously compromised as judging would no longer be a function of dispassionate and apolitical reason but of nomination and confirmation politics. That political process would determine the legal process, in effect, rendering the latter a sham."

I cannot reconcile Mr. Pilon's strong statements against the nominee (though I do not believe he has called for withdrawal prior to the hearings) with this warning, but I also cannot reconcile Judge Bork's condemnation of her with Judge Bork's introduction to the new book ke edited and released this summer, or David Frum's leadership of the new organization attacking Miers with his July 4 description of a potential Miers nomination.

All no doubt have explanations which deserve a careful hearing, of course, and they may even be persuasive.

But I don't think it is possible to deny that the assault on Miers has given the left a sword of incredible sharpness for use in future judicial battles. The Gang of 14 did incredible damage in May, but it was possible to recover from that set-back because conservatives did not abandon their argument for an up or down vote after a hearing. Now many have. The list of conservatives publicly urging a hearing and an up-or-down vote for Miers is very short indeed. Perhaps that will change.

Patterico asks what do I think of the Harriet Miers' speeches dug up by the Washington Post. Answer: Not much. ("A mess" I said on tonight's show, though I shudder at the thought of seeing what I said in many of the thousands of speeches I have given over the years reproduced by the Post as though each one was a Rosetta Stone to my beliefs.)

Lousy speeches, in fact, and she should be asked to explain what she was trying to say and whether she still believes it. Conservatives are right to ask if they contain an implicit endorsement of Casey though the speeches do not mention any case at all, and conclusiveness on that point is an overreach. The neo-Borkers want to declare "Game, Set, Match." That is not fair, but fairness went out the window on day 1.

There's a lot of overreach going on because anti-Miers people want to kill the nomination before the nominee makes it to national television --Ollie North and all that. Under no circumstances should the nominee withdraw or the president allow this nominee to withdraw, because I think the exchanges are going to be very interesting, and very instructive.

On the morning of the announcement, I wrote:

As I wrote last night, Judges Luttig and McConnell are the most qualified nominees out there, but I think from the start that the president must have decided that this seat would be given to a woman, and it is very hard to argue that she is not the most qualified woman to be on the SCOTUS for the simple reason that she has been in the White House for many years.

When Chief Justice Roberts was nominated, I wrote a piece for the Weekly Standard on the importance of Executive Branch experience, "The Presidents' Man." That piece focused on John Roberts' service in the Counsel's Office under Reagan, and concluded that his nomination brought

to the highest court the sort of experience it deserves among its members, especially in a time of war. It can only help all the justices, even those who will vigorously disagree with the new justice from time to time, to have within their number a genuine voice of experience from within the inner circles of presidential decision-making.

The Chief Justice's experience did not, however, include GWOT experience, and it is here that Miers has a decisive advantage. Consider that none of the Justices, not even the new Chief, has seen the battlefield in the GWOT from the perspective or with the depth of knowledge as has the soon to be Justice Miers. The Counsel to the President has seen it all, and knows what the President knows, the Secretaries of State and Defense, the Joint Chiefs and the Attorney General.

I suspect that the President thinks first and foremost about the GWOT each morning, and that this choice for SCOTUS brings to that bench another Article II inclined justice with the sort of experience that no one inside the Court will have.

Tonight, Soxblog got very close to understanding my perspective on this, but ommitted one other set of considerations which I will write on tomorrow. In addition to her qualifications --which to me are manifest, and include her character-- and the terrible political price the GOP Senate will pay for rejecting the nomination, there is also the obvious and lasting damage that will be done to the judicial confirmation process that is inevitable if a GOP controlled Senate rejects a GOP nominee on ideological/competence grounds. That's for tomorrow.

Tonight, though, I will say that people do in fact change. Even if Miers was wrong about some important things in 1992-1993, that doesn't mean she is wrong now. Politics can change people. War can change them as well, in dramatic ways. Years with W and his team can change them.

I argued tonight, like I argued on October 3rd, that there is nothing like five years in the White House to educate an individual on what your opposition at home and your enemies abroad are really, truly about. Miers has that credential. What, Patterico, is that worth? Do you want her to have the chance to answer?

What do Harriet Miers and the new Chief Justice share in common? Five years of service in the White House. I only spent one, but with the addition of one year as an aide to the Attorney General on national security matters, my world view was altered.

You learn stuff. Lots of important stuff.

Five years in the White House during a war of extraordinary challenge, and throughout which there has been a domestic opposition of unprecedented ferocity: Does that have any value to her critics at all?

I think Harriet Miers deserves the hearing GOP senators gave Justices Ginsburg and Breyer. I think the GOP senators owe Bush at least as much deference as they gave Clinton. And as for new senators who were not there when Clinton nominated his two justices, what do they owe the president?

What ticks me off more than anything else about the long knives is that Harriett Miers has been on the political front lines of the GWOT for five years, and they are trying to deny her a hearing.

It is bad politics. It is bad policy. It is also an incredible display of bad form. And with full knowledge of the ridicule this will bring: It isn't the conduct of a gentleman.

Back to Patterico: Is change possible over a dozen years, five of which are spent in a White House at war? Does Miers deserve a hearing? Are you open to being persuaded? What are the minimum qualifications for a SCOTUS nominee? Does a dashed off speech from a dozen years and a different life ago provide a sound basis for judging Harriet Miers?

I answered Patterico, so I suspect Patterico will answer me. Keep in mind that these questions put into text a standard with which Patterico will have to live with for a long, long time, and which Dems will be watching evolve with interest.

Here is the transcript of my interview with David Frum today.

Here is the link to a September 29 post by David that did warn of the downside of a Miers nomination, a link that must be read in tandem with David's first posting on Miers which many have read as David's endorsement of Miers mid-summer.

But here's the key part of today's interview: David's new group has raised $300,000 to camapaign against Miers on television and radio, from "two dozen" donors who will not reveal their names.

In a stroke is legitimated all the attack tactics of the left-wing groups against so many decent men and women beginning with Robert Bork. Our side has now picked up the weapon of the left. It will be difficult for the argument to be mounted effectively in the future that such tactics are illegitimate in the context of judicial nominations.

More on this tomorrow. Other good posts tonight from President Aristotle, Big Lizards, and Points of Life.

Now, two off-topic posts. Blogotional on the depressing facts of jury service and American attachment to the rule of law.

And an uplifting post from the Naval Academy's Professor David Allen White on what college students who don't read should read anyway.

Today's guests: David Frum, Michael Barone, Peter Robinson, Jonathan Adler, Ed Whelan, and John McIntyre.

Here's my favorite question: If Miers is defeated, and the SCOTUS strikes down parental notification laws with a 5-4 vote, O'Connor in the majority, followed by another knock-down battle over Alberto Gonzales' nomination --does anyone really think this president is going to take a political rebuke from the Senate majority he made, or that he will risk a second defeat?-- and given the importance of the parental notification case, what will be the political consequences?

All of these interviews will be transcribed and available at Radioblogger.com as Duane and I (mostly Duane)strive to compile a detailed and fair archive of all the arguments swirling around the Miers nomination.

In a lengthy Wall Street Journal story this morning on Federalist Society executive director Leonard Leo's support for Harriett Miers, there is a featured quote from the Cato Institute's Roger Pilon:

"This woman has demonstrated almost nothing that would indicate she is either one of us or up to the job." (Emphasis added.)

From an e-mail this morning:

The President promised "a judge in the mold of Scalia and Thomas." Do they forget the row about Thomas? How he was un- or under-qualified, a diversity pick, how no one really believed he was "the best person for the job," how a personal story of character was not the proper qualification to SCOTUS? The first 2 or 3 years Thomas was on the court, he was accused of not having his own mind, only was there to copy Scalia. But eventually Thomas emerged as a champion of the conservative cause.

The difference between conservative legal elites' support for Justice Thomas and their split over Miers is that Justice Thomas was indeed "one of us" in their eyes, meaning one of the Capitol's regulars at roundtables and seminars and receptions prior to his elevation to the D.C. Circuit. Justice Thomas had many personal friends who went to the mat for him against the onslaught in 1991.

Miers has been in D.C. for nearly five years, but is clearly not a "joiner," and has clearly been working very long hours at the White House. The "not one of us" argument is the most candid admission yet of one the most powerful motives at work in the anti-Miers camp. This is not to say that critics of Miers aren't sincere. They are. But Pilon's admission against interest may explain the ferociousness of the assault from normally reserved and jovial academics. When Bacchus takes up the dagger, something strange is going on.

The echo-chamber effect that plagued the Michael Moore Democrats last year may now be at work among conservative intellectuals who think they are seeing a rising, when in fact they are witnessing the equivalent of a cyber faculty meeting meltdown over a tenure decision, on steroids.

What do the GOP senators who have the votes see?

I began surveying hometown papers of Judiciary Committee senators today, and found this interesting article in the Des Moines Register from October 6. In it, Senator Grassley made these comments:

"Maybe everybody ought to just cool it," the Republican said. "We have a constitutional process that will answer a lot of these questions."

The article also notes:

Grassley said some of his initial worries were soothed by a one-on-one, 45-minute meeting he held with Miers on Tuesday afternoon that "went very well." He said, though, that the meeting won't have as much bearing as the hearings.

This on-the-record assessment contrasts with the anonymous slagging of Miers' welcome in the private meetings that has become an article of faith in the anti-Miers camp.

The paper also reported:

Paula Dierenfeld, a Republican activist and lawyer from Des Moines, said Miers has been "a real trailblazer" in her profession. "She's a true role model for women in any male-dominated profession but in particular the practice of law," Dierenfeld said. "I think the president again has selected the person most qualified for the position."

Both Dierenfeld and Steve Roberts, a member of the Republican National Committee from Iowa, said they have heard no criticism of Miers from Iowa conservatives.

Christine Stineman of Progress for America said Iowa members of the group, because of their "unique position" living in the state with the first-in-the-nation presidential caucuses, will be pressing Republican senators who visit Iowa to state their positions on Miers.

"We'll be communicating with letters and e-mails and talking with folks as they come in the state," she said.

My guess is that the phones aren't burning up in the way that they exploded when Dems tried to suppress the votes of the military overseas in the Florida Fiasco of 2000, or in the aftermath of the Gang of 14's deal in the spring. If it was otherwise, there would be many visible signs.

One of the advantages of being a talk radio host is that I do travel to my markets and I do meet with audiences, and I get to ask them questions. I am a frequent visitor to various GOP grassroots organizations, from the gatherings of the classic "blue haired ladies," to a Tech Coast professional womens' club, to various fundraisers for candidates. I don't just talk about the base, I meet with the base. A lot. As do GOP senators on the Judiciary Committee.

There is no upside for a GOP senator to break with the president over Miers, but considerable risk. And not just risk to that senator's standing with the loyal Republican activist of years or even decades of service, but also to the Senate majority.

How important is that majority to senators?

Senator Grassley, you may recall, was one of the Committee Chairmen who lost their posts when Jim Jeffords did his big bounce in May, 2001. Senator Specter is just begun on what he hopes will be a six year run as Chair of Judiciary. Even the junior senators on Judiciary will be hearing from their caucus colleagues on the dangers to the majority of a botched hearing.

Maryland's Lt. Gov. Michael Steele declared yesterday for the seat being vacated by Senator Sarbanes. Will it help or hurt this dynamic candidate who has a chance to become the GOP's first African American senator since Brook of Massachusetts if the Judiciary Committee's GOP members pummel Miers over the Texas Bar Association's policy of encouraging minority recruitment? Will such a verbal blast help Ohio's Ken Blackwell, the African American candidate for the Buckeye State's governorship?

In Minnesota, where Mark Kennedy has a shot at the open seat of retiring Mark Dayton and where pro-life sentiment cuts across party lines as it does in Pennsylvania where Senator Santorum faces an uphill battle against a self-declared pro-life Bob Casey, Jr., will it help either man for Republican senators to reject a nominee who has supported the Human Life Amendment and battled the ABA over the issue?

Over at In The Agora, Paul Musgrave replied to my "public choice" argument, and suggested I used the wrong unit of analysis. Musgrave provides some excellent pointers to background on public choice theory, and here's a one paragraph intro:

Public choice takes the same principles that economists use to analyze people's actions in the marketplace and applies them to people's actions in collective decision making. Economists who study behavior in the private marketplace assume that people are motivated mainly by self-interest. Although most people base some of their actions on their concern for others, the dominant motive in people's actions in the marketplace—whether they are employers, employees, or consumers—is a concern for themselves. Public choice economists make the same assumption—that although people acting in the political marketplace have some concern for others, their main motive, whether they are voters, politicians, lobbyists, or bureaucrats, is self-interest. In Buchanan's words the theory "replaces... romantic and illusory... notions about the workings of governments [with]... notions that embody more skepticism." (emphasis added.)

I think Professor Musgrave's analysis almost entirely misstates a senator's perspective on the matter before them.

There is no large scale revolt in the base, although there is a lot of noise from commentators. The somewhat desperate looking attempt to get a new "grassroots" campaign going tells me that no established and powerful group is willing to take the internet lead. (Thus splitting their own donor base?) Some internet sites are opposing Miers, some are supporting her. Some legal heavyweights are critical. Some legal heavyweights are supportive. Crucially, the president isn't wavering an inch. Senate offices know revolts when they happen, as do talk show hosts. This is a great issue for talk radio because there are passionate, passionate people on both sides.

But the public hasn't risen up and demanded the Senate act to defeat Miers, and the very good chance is that if that hasn't happened yet, it isn't going to happen at all.

The upside of voting against Miers for a senator is so limited as to be almost non-existent in the real world of politics. The promises of glorious battles with the Dems and the break-up of the Gang of 14 means to them shattering their comfortable worlds and opening themselves up again to the enormous pressures that built throughout the spring. To those who, like Senators Graham and DeWine, took the most heat for the Gang of 14 deal, or like Senators Chafee and Snowe, facing re-election with restive conservative bases, or even stalwart Jon Kyl, facing a deep pockets opponent in Arizona, smashing up the president nominee just doesn't figure to be a good move. Try explaining to the Arizona Pro-life Network why Miers wasn't good enough.

And then there is the prospective trauma of losing, again as in 2001, the majority from which all their influence over legislation and hearings flow. To approve Miers is to shift the responsibility for the choice squarely on to the president --where it belongs, by the way-- and to protect themselves and their colleagues from voter backlash. It is to defuse many potentially potent arguments of Democratic opponents --there obviously was no litmus test, there is a woman to replace a woman, not a second white male, there is such a thing as "affirmative action" that does not offend the Constitution and which is reconcilable with adamant opposition to Grutter-like race weighting by state actors in the admissions process.

Or they can risk the wrath of the Cato Institute and the "not one of us" caucus.

Finally, the anti-Miers crowd lacks a Senate champion, and finding one is their greatest obstacle, and one that will only get harder.

They are looking for Senator Brownback or Senator Allen, but both senators are looking at the 2008 primaries, and both must know that the defeat of the Miers' nomination will be a lasting scar laid at the Senate's feet if it happens. When you run for president, you want to run for something, not away from something. You imagine not just the questions you will be asked over and over again, and the answer you will have to give over and over again. You try very hard to control variables, and worry constantly about raising money --not a little of it from lawyers far outside of the Beltway, btw, who had always thought themselves qualified to be judge or a justice if only they'd had a little more time. You have an answer for voting for Miers: "The GOP has always believed that absent a character flaw, the president gets his nominees and to vote against Miers is to surrender the process we are trying to fix to the special interest groups of the left's agenda and tactics demand for ideological answers from nominees." Your answer for voting against: "I just couldn't bring myself to trust the president's judgment on this one, and I didn't foresee what would happen next."

True, they will earn praise from some activists, essayists and bloggers. But many of those new friends with blogs were friends of the president until he disappointed them. You don't get elected to the Senate by banking on the loyalty and support of opinion makers who are in the process of displaying their willingness to turn on a dime and compare the president's nominee to Caligula's horse.

There are a lot of issues on which to run for president. I don't think a successful GOP campaign has ever been launched on the idea of defeating the incumbent president on a crucial issue.

It will be a very interesting few weeks.

UPDATE: 10:50 AM, Pacific

I have reproduced the Texas ABA Resolution that has upset so many anti-Miers commentators. It wasn't available on-line, so here it is. Please note that although the language is the same, the formatting of this document is not the same as the original.

RESOLUTION OF THE STATE BAR OF TEXAS
REGARDING STATEMENT OF GOALS
OF HOUSTON LAW FIRMS AND CORPORATE
LEGAL DEPARTMENTS FOR INCREASING
MINORITY HIRING, RETENTION AND PROMOTION

WHEREAS, according to the National Law Journal, minorities comprise only 2.4 percent of partners and 6.8 percent of associates at the 250 largest law firms in the United States; and

WHEREAS, minorities comprise only 2.1 percent of the partners and 4.8 percent of the associates of the 18 largest law firms in Texas, and

WHEREAS, the Hispanic Bar Association has promulgated and unanimously adopted the attached “Statement of Goals of Houston Law Firms and Corporate Legal Departments for Increasing Minority Hiring, Retention and Promotion” (the “Statement”); and

WHEREAS, the Statement provides a hiring goal (not a quota) and delineates steps to achieve greater participation of minority lawyers in majority law firms;

WHEREAS, the Statement has been endorsed and approved by numerous other local bar associations, including the Houston Bar Association, the Mexican American Bar Association of Houston, the Houston Lawyers and the Durham Society; and

WHEREAS, as of June 22, 1992, the Statement has been endorsed by 23 law firms and 5 corporate legal department, the names of which are attached hereto; and

WHEREAS, the State Bar of Texas desires to encourage qualified minority law students to apply for employment at Texas law firms; and
WHEREAS, the State Bar of Texas desires to encourage majority law firms to seek, hire, retain and promote qualified minority lawyers; and

NOW THEREFORE, BE IT RESOLVED THAT:

1. The State Bar of Texas approves and endorses the Statement of Goals.

2. The State Bar of Texas encourage local bar associations throughout Texas to promulgate and implement similar programs.

3. The State Bar of Texas encourages majority law firms to increase the number of minority partners and associates in their firms.

4. The State Bar of Texas encourages majority law firms to adopt the Statement of similar programs in order to increase the number of minority partners and associates in majority law firms.

STATEMENT OF GOALS OF HOUSTON LAW FIRMS
AND CORPORATE LEGAL DEPARTMENTS FOR INCREASING
MINORITY HIRING, RETENTION AND PROMOTION

By THE HISPANIC BAR ASSOCIATION

Preface

There are occasions when the supremacy of a document of principles requires the subscription of individual names so that the world will not doubt a public commitment., The founding documents of our policy – the Declaration and the Constitution – bear names now given upper-case immortality as the Signers. When the Supreme Court rebuked open defiance of its desegregation decisions in Little Rock, Arkansas, the opinion was not only unanimous but carried the individual signatures of every member of the Court.

-- Cooper v. Aaron, 358 U.S. 1 (1958).

Today, when the nation’s commitment to equal opportunity and racial justice is under assault from many quarters, leaders of the various majority and minority bar associations have not been content merely to have their Associations speak in its own name about necessary efforts to improve the recruitment, retention and promotion of minority Lawyers. Instead, by an act of unmistakable clarity and institutional seriousness, law firms and corporations have affirmed their adherence to the Statement of Goals unanimously adopted by The Hispanic Bar Association.

The signatories pledge themselves to take steps to increase the employment of minority lawyers who are African- and Asian-American, Hispanic- and Native American, declaring as a desirable goal, not a quota, the employment of ten percent of the total number of all lawyers hired by each firm or corporation during the period 1993-1998. If recruitment and retention programs are successful, then, over time, minority partners and senior corporate counsel are expected to correspond more closely to the percentage of minority lawyers they hired. The signatories agree to take specific steps toward the goal of increasing retention and promotion rates of minority lawyers. The signatories agree to pursue programs further to ensure that work opportunities for minority lawyers are equivalent to those of non-minority lawyers.

The Statement of Goals is a great advance for the Bar and a beacon to the country.

STATEMENT OF GOALS

I. Introduction

1. The number of African-American, Hispanic-American, Asian-American and Natives American Lawyers (collectively “Minority Lawyers”) practicing in law firms and corporate legal departments in the City of Houston has long been small in relation to the total number of lawyers employed by such law firms and corporate legal departments.

2. In a profession that has prided itself in leading the fight for equal opportunity under the law, it is essential that we make further progress in achieving greater representation of Minority Lawyers at all levels in our own firms, and corporate legal departments.

3. The increased enrollment of Minorities in law schools, which now exceeds 15 percent of graduating classes in most schools from which Houston law firms and corporate legal departments recruit, affords an opportunity for increasing the representation of Minority Lawyers in firms and legal departments, as these enumerated below continue or are taken.

II. Statement of Goals for Increasing Minority
Representation at All Levels of Law Firms and
Corporate Legal Departments

EACH SIGNATORY PLEDGES TO PURSUE THE FOLLOWING GOALS:

(a) Full and Equal Participation of Minorities: To achieve participation of Minority Lawyers at all professional levels in its law firm or corporate legal department.

(b) Minority Hiring: To achieve the goal of hiring, during the period 1993 through 1998, a substantial number of Minority Lawyers, subject to the availability of Minority applicants meeting the hiring criteria of such firm or corporate legal department. A desirable goal (not a quota) to be achieved would be equal to 10 percent of the total number of all lawyers hired by such firm or corporate legal department during the period 1993-1998. We believe that this goal is realistically attainable if steps recommended in Section III are continued or are taken and the pool of minority law school graduates from which the law firms or corporate legal department recruits is at an adequate level.

(c) Minority Partners and Senior Corporate Counsel: To promote or to invite to partnership in each law firm and to senior corporate counsel in each corporate legal department, Minority Lawyers who meet the firm’s or legal department’s requisite criteria for partnership or senior corporate counsel. We believe that this goal and the hiring goal set forth in the preceding paragraph are related and mutually dependent in that, if recruitment and retention programs are successful, then, over time, the number of minority partners and senior corporate counsel will correspond more closely to the percentage of Minority Lawyers hired by the firm or corporate legal department. Firms and corporate legal departments that have Minority Lawyers at the senior level are better able to recruit minority law graduates. The more successful a firm or corporate legal department is in recruiting, the more likely it is that more Minority Lawyers will achieve partnership or senior corporate counsel status.

III. Steps to be Taken by Firms and Corporate
Legal Departments in the Recruitment Process

EACH SIGNATORY PLEDGES TO PURSUE THE GOAL OF INCREASING THE NUMBER OF MINORITY LAWYERS HIRED BY TAKING ALL OR SOME OF THE FOLLOWING STEPS:

(a) Continuing to utilize hiring criteria for all lawyers (minority and non-minority) that include academic records, communication skills, leadership, integrity, resourcefulness and other factors which indicate potential for success in the law firm or corporate legal department.

(b) Increasing the pool of minority law student applicants who meet the firm’s or corporate legal department’s hiring criteria by:

(i) augmenting interviewing efforts at law schools with significant numbers of minority law students; and (ii) identifying minority students through placement administrators, faculty members, former summer associates and minority law student organizations at law schools and by job forums, receptions and other activities for law students.

(c) To the extent that a law firm or corporate legal department engages in lateral hiring, increasing the lateral minority attorney applicant pool by: (i) communicating with law school placement administrators and faculty members for referrals to practicing Minority Lawyers; (ii) requesting professional recruiters, when used, to include Minority candidates in their searches; (iii) requesting Minority partners of law firms for referrals.

(d) Recruiting Minority applicants by involving partners and senior corporate counsel in the recruitment process.

(e) Communicating to all lawyers the firm’s or legal department’s commitment to the goals set forth in this statement.

IV. Steps to be Taken by Firms and Corporate
Legal Departments for Retention and Promotion o
Minority Lawyers to Partnership and Management Positions

EACH SIGNATORY PLEDGES TO CONTINUE TO PURSUE THE GOAL OF INCREASING RETENTION AND PROMOTION RATES FOR MINORITY LAWYERS BY DOING THE FOLLOWING:

(a) Exercising diligence and sensitivity further to ensure that the opportunities for Minority Lawyers are equivalent to those provided to non-Minority Lawyers in the assignment of work on a consistent basis of the type necessary to develop skills and acquire experience for success and advancement;

(b) Enhancing programs aimed at increasing retention rates for all attorneys, focusing on allocation of interesting work, training and guidance, relationship with partners and senior corporate counsel, client contacts, feedback and pro bono commitment;

(c) Exercising diligence and sensitivity further to ensure that the work, and social environment is as hospitable for Minority Lawyers as it is for non-Minority Lawyers by providing and encourage that:

• Minority Lawyers receive equal opportunity to perform significant work assignments for important clients;

• Minority Lawyers receive equal training, mentoring, guidance, feedback and opportunities to grow and succeed;

• Minority Lawyers are included in work-related social activities with other lawyers and clients;

• Programs are adopted for all new lawyers that enhance their understanding of business concepts, client relations, and their confidence in dealing with such matters.

• Social and business development opportunities (both informal and formal) for Minority Lawyers are free of discrimination on the basis of race, sex, religion, creed or natural origin.

(d) Ensuring equal opportunities for Minority Lawyers to achieve partnership or senior corporate counsel status by:

• Using the same criteria for Minority and Non-Minority Lawyers in evaluating lawyers for promotion to partnership or senior corporate counsel status

• Guiding the development of Minority Lawyers in the same manner as non-Minority Lawyers

• As Minority Lawyers near consideration for partnership or senior corporate counsel, assigning responsibility for important client matters to senior Minority Lawyers in the same manner and extent that such matters are assigned to senior non-Minority Lawyers.
The Statement of Goals is endorsed by the Durham Society, the Hispanic Bar Association, the Houston Bar Association, Houston Lawyers and the Mexican-American Bar Association.

That's from this New York Times' article.

If there is no clear and convincing evidence that Harriett Miers is not qualified for SCOTUS --and thus far there is nothing remotely approaching a persuasive case for a "no" vote-- any GOP senator that votes against her will be asking for the same treatment at the polls as Miers received from him or her.

Getting this vote wrong will be disastrous for the GOP, with possible consequences including Patrick Leahy returning to the chair of the Judiciary Committeee for starters. Michael Barone was right to call it a 51-49 or 51-48 nation after last year's election. That crucial margin can be lost. In such a situation, the GOP cannot send even 3% of its supporters to the sidelines.

And no GOP senator who, post-Jeffords, really understood the difference between majority and minority, will boldly demand purity over party. To do so is to ask for the responsibility for set-backs to be laid at their feet rather than the president's.

Notice how the folks who voted to confirm Justice Souter are not blamed for Justice Souter's record, but the first President Bush is? (And his staff.) If Miers does well at the hearings, it will be political suicide to vote against her if the nomination is defeated.

Public choice theory holds that electeds do what is in their self-interest. It is not in the self-interest of any GOP senator to vote against Miers. I look forward to reading any post that argues the opposite.

Innuendo and high panic will not do. The hearings will be the forum for this debate.