I'll be at the U. of Tennessee law school this Wednesday, speaking to the Federalist chapter on the fallout from Kelo v. City of New London. Time is 12:25-1:10; I don't have a room number yet. Any SA readers in the vicinity are more than welcome to attend. No charge, of course. And, Federalist events normally involve pizza at some point.

What a difference 141 years makes...
On December 6, 1864, Abraham Lincoln wrote the following letter "To the Senate of the United States:"

I nominate Salmon P. Chase of Ohio, to be Chief Justice of the Supreme Court of the United States vice Roger B. Taney, deceased.
Abraham Lincoln

In my copy of The Collected Works of Abraham Lincoln, editor Roy Basler notes the following:

On the bottom of Lincoln's letter appears the following endorsement:

United States Senate
In Executive Session
Decr. 6. 1864.

Read; considered by unanimous consent, and nomination unanimously confirmed.

Attest:
D.W.C. Clarke
Principal Executive Clerk

Confirmed by unanimous consent the same day. Wow.

Worth reading:

Wilfred McClay's speech last week on "Myth and Memory in the American Identity," for the Heritage Foundation. (I noted an essay of McClay's on higher ed on Friday.) (Hat tip to Joe K. at NLT.)

Stephen Warshawsky concludes that higher ed as we know it cannot be reformed; the solution requires "establishing competing colleges and universities dedicated as institutions to conservative values, ideas, and texts."

Jonathan Last wonders whether America's elites will follow roughly the same path taken by British elites after World War I.

"The social responsibility of business," Milton Friedman famously explained in 1970, "is to increase its profits." Friedman revists this topic in the October issue of Reason, debating the CEOs of Whole Foods (John Mackey) and Cypress Seminconductor (T.J. Rodgers).

The Columbia Journalism Review's profile of Judge Richard Posner is about what you'd expect, I guess.

Alito Confusion Starts: Like most, I'm pleased about the Alito nomination and am looking forward to the coming weeks/months. For some time now, fellow classmates and I have engaged in way too many emails debating the Miers nomination, constitutional interpretation and now the Alito nomination. Below is a spot-on comment by a classmate, which I'm taking the liberty of posting, regarding the nomination of Judge Alito and the plan of attack, or so it appears, from the Left:

One quick point to make
Chris Matthews made two serious mistakes in his discussion of Casey and Ailto's role:
1. [Matthews] kept saying the father had to give consent: The Penn. Statute required notice not consent. Fortunately Mr. Hatch corrected him[.]
2. [Matthews] posed the question about what if the husband beats the wife[?] [U]nfortunately Mr. Hatch did not correct Mr. Matthews on this one. The Penn. law had an exception for [instances where] the spouse has been a past abuser.

We must stay on our feet on this one, because the left will continue to confuse the notice part of Casey.
I remind you that whenever a liberal Senator can get airtime they are going to say consent instead of notice. When they do this they are guilty of either 1. Not actually doing their homework and reading [] Casey [and the] statute . . . or 2. Intentionally lying[.] [E]very conservative that goes on any of the 24 news shows should make th[is] point.

"Top ten changes a Catholic Majority would make to the Supreme Court": I thought this was pretty funny (courtesy of Benedict Blog):

10) Meat-less Fridays all year round in the Supreme Court cafeteria;

9) Oral arguments in Latin;

8) The bones of Chief Justice Marshall will be disinterred and placed in a glass coffin in the center of the Supreme Court bench;

7) Collections between each session of oral argument;

6) Supreme Court windows replaced with stained glass;

5) On close votes, the Justices will consult a statue of St. Thomas More. If the statue weeps, they affirm; if no tears, then they reverse.

4) Incense at the start of each session;

3) Supreme Court opinions will be deemed infallible and unreviewable by any earthly authority [Ed. - Sorry - that does not appear to be a change at all]

2) Catechism of the Catholic Church will now be "persuasive authority";

And, the number one change which a Catholic majority would make to the Supreme Court . . .

1) Wednesday night bingo!

"Sliming Alito, or a display of incompetence": Mike Krempasky, the Karl Rove of RedState and Confirm Them, nails the DNC lackeys who put out a nasty hit piece on Judge Alito.

Another reason to like Alito--he hired a graduate of Ave Maria School of Law as a law clerk. Here's hoping Justice Alito keeps the AMSOL grad on. What a great feather in a wonderful school's cap!

I am off to go trick-or-treating with the kids. And yes, I am wearing a costume. You can probably guess who I am going as tonight. Heh.

How are Democratic Senators responding to Alito's nomination? I'm reviewing their webpages now and will post interesting tid-bits as I come across them, starting with
Senator Daniel K. Akaka's (HI) amusing statement:

"Judge Alito's extremely conservative views threaten to lead the Court in a new and hostile direction on privacy rights and civil rights. . . . I am approaching my duty of advice and consent with an open mind."

On being "second": For some reason, certain media pundits and bloggers think that it's clever to play up the "Alito is the second most qualified person for the Supreme Court" meme, which is disingenuously premised on the notion that the order in which one is selected for a position somehow speaks to his qualifications.

It's bunk, of course; and the people peddling this canard know it.

Indeed, one need look no further than Joseph Story, arguably the greatest justice in the history of the Supreme Court, who was President Madison's fourth choice. Things turned out quite nicely for him.

Now, I suppose one might counter the foregoing historical tidbit by pointing to Justice Anthony Kennedy, who was President Reagan's third choice. To which I would respond by saying, "Well played. He's awful."

Nevertheless, my overall point stands: That Judge Alito was "picked second" in no way diminishes the tremendous honor of being nominated by the president. If anything, Alito''s selection is even more of an honor because it is unquestionably the result of the Republicans' base demanding a highly credentialed judicial conservative for the Supreme Court.

Alito Prediction:

The good Samuel Alito (who reminds me of Sandy Stern from the Scott Turow novels) will win confirmation without as much difficulty as many expect.

The O'Connor seat is not the crucial seat. Even if we have Alito, Scalia, Thomas, and Roberts, the other team has Stevens, Souter, Ginsburg, Breyer, and Mr. "Sweet Mystery of Life" Kennedy. This seat is not the one that changes the balance. It makes the middle depend almost entirely on Kennedy, that's all.

Where it's going to get ugly is if a Republican gets a chance to nominate Stevens' replacement.

I propose a record of fabrications and spinications on Alito. I have already heard several lies and spins about Alito's record. Please email me with examples (with links if possible), and I'll try to put together a daily summary for all!

CBS reporter describes the Alito nomination as "sloppy seconds": Drudge has the details here.

Another MSM spin on Alito's dissent in Casey. Most of the mispresentations/spins have been pointed out, but I've already heard several times reference to Alito's dissent, as "the lone dissent," or the "sole dissent." That description might make sense if Casey were re-heard en banc and out of the full court, Alito was the only one who dissented. However, Alito's dissent (in part), came from a three-judge panel. Thus, if he wasn't the lone dissent, he would be in the majority!

More on Alito: You can read his bio here, and some leftist reaction that I've compiled over at Confirm Them here.

Justice Alito--Sounds so very nice: One of my "bestest" law-geek buddies sent this to me a few minutes ago via email:

ALITO

GEORGE
(spoken)
Alito . . .
(sings)
The most beautiful sound I ever heard:
Alito, Alito, Alito, Alito . . .
All the beautiful sounds of the world in a single word . .
Alito, Alito, Alito, Alito . . .
Alito!
I've just met a judge named Alito,
And suddenly that name
Will never be the same
To me.
Alito!
I've just nominated a judge name Alito,
And suddenly I've found
How wonderful a sound
Can be!
Alito!
Say it loud and there's music playing,
Say it soft and it's almost like praying.

Alito,
I'll never stop saying Alito!


The most beautiful sound I ever heard.
Alito.

Heh.

Seriously though, I really am excited. It's hard to believe how far we've come from just a few weeks ago. All seems right with the world again. Yes, there will be a fight. But I don't believe for one second that the dems have any chance of defeating this nominee, and deep down I think they know it. The idea that Alito's nomination constitutes "extraordinary circumstances" is a joke. We might as well go ahead and start referring to him as Justice Alito, because he will be sitting on the Supreme Court in the near future.

Oh, and Mr. President, all is forgiven. Thank you for doing the right thing. It's good to be back on your side. Let's never ever fight again, o.k.? :)

St. Dubya, all is forgiven!

A done deal: No head fake this time: It's Alito.

Naturally, I am thrilled with the president's choice.

(Sorry for the delay in posting this, guys. I had to do an interview with a local radio station here in Macon)

Breaking News: According to the AP via Breitbart, Bush will announce this morning that 3rd Circuit Court Judge Samuel Alito, Jr. will be his Supreme Court nominee. Michelle Malkin has more.

To my Catholic co-bloggers and readers: Happy Reformation Day!

Y'all just knew that I had to tweak y'all about it. ;-)

The stakes: I was reading Pope Benedict XVI's "The Spirit of the Liturgy" tonight when I stumbled across this passage, which I thought I'd share with y'all:

A people without a common rule of law cannot live. It destroys itself in anarchy, which is a parody of freedom, its exaltation to the point of abolition. When every man lives without law, every man lives without freedom.

Indeed. And that is why who sits on the Supreme Court matters so much. Our constitutional republic is at a crossroads of sorts; and we will either begin the process of restoring the federal judiciary, by having it return to its proper role as interpreter of our nation's Constitution and laws, or the federal courts (specifically the Supreme Court) will continue to fuel this country's downward trajectory toward a nation ruled by judicial elites.

I am praying President Bush finally understands just how monumental the stakes really are, and then chooses accordingly.

I am going out on a limb: I think it's going to be Judge Janice Rogers Brown.

I am not basing this on anything but a political hunch, but here's my thought process:

(1) President Bush knows that his base wants a genuine judicial conservative on the Supreme Court to replace Justice O'Connor, and that he must deliver in the aftermath of the disaster that was the Miers nomination;

(2) Nevertheless, he really wants to replace O'Connor with a woman (as does O'Connor, the First Lady, and his mother);

(3) The president likes to surprise people. He is still a frat boy at heart, and I think he wants to overcompensate for the Miers debacle without saying he made a mistake (Our Dubya is certainly a stubborn one, isn't he?);

(4) So, the president purposely leaks Alito and Luttig's names to gauge the general reaction of the base over the weekend (and the response thus far has been enthusiastic to say the least);

(5) He then names someone even more conservative than Luttig and Alito, like Edith Jones or Janice Rogers Brown, sending his base into a delirious state of ecstasy; and

(6) Between Jones and Brown, I now give the edge to Brown. Nominating the first African- American female to the Supreme Court would unquestionably be historic, and I don't care what the dems say about Brown, it is going to be awfully difficult for them to deny her a seat on the Court given Rosa Parks's recent passing. Keep in mind too that this woman has a compelling life story: A sharecropper's daughter who grew up in the segregated South, and is now a federal appellate judge on (arguably) the second most prestigious court in the country. That's good stuff, folks.

I could be wrong about all this, of course, but my gut tells me that I am probably right.

And if I am right, I'll be thrilled to death.

Update: One other quick point: Of the nine justices currently sitting on the Supreme Court, four of them came from the D.C. Circuit (Scalia, Thomas, Roberts, and Ginsburg). And as y'all know, Judge Brown was recently confirmed to fill a vacancy on the D.C. Circuit.

Update II: BTW, the "frat boy" reference was not meant to be a dig at President Bush. I am a former frat boy myself, and I still have a mischievous side (as evidenced by my posts here and over at Confirm Them).



(cross-posted at Confirm Them)

"Sen. Reid Says Miers Was Not a Mistake": Well, then you should have made the case for her, Harry.

You're just upset now because you know that President Bush's next selection is likely to be an unabashed judicial conservative.

I hope you and your fellow dems enjoyed the side show for the past few weeks, because now we're all on the same team (even if we are still mending some fences), and we're ready to go to war to get our man/woman on the Court.

Union thuggery, caught on tape.

This just in. Florida beats Georgia 14-10, despite rousing effort from backup QB Joe Leshererinocinchi, whom CBS had anointed feel-good story of the month before the game had even begun.

The game provides some vindication for discarded-flavor-of-last-month Urban Meyer, whose vaunted spread option offense had been declared a transparent fraud after sluggish performances in six games of SEC competition. We know now that that Notre Dame never really wanted Meyer either.

For Florida fans, the game confirms that Georgia still sucks, causing the St. John's River in Jacksonville still to flow northward.

Will we all be shocked on Monday?: I probably shouldn't pay any mind to this comment from A3G's place, but she does have some very loyal readers in high places, so here goes:

. . . . there will be unexpected joy in ALL conservative corners Monday, I promise you... extremely conservative female judge no one is suspecting coming from Card/Bush/Miers weekend talks will shock the nation

Hmmmm. Assuming this comment is legit, I am thinking it's gotta be Edith Jones.

Thoughts?

Calling all Luttigators: I am a huge fan of Judge Luttig, and I would love to see him on the Supreme Court; but if the president nominates him, get ready for some really nasty attacks.

If you clerked for Judge Luttig or know him personally, please help me and others prepare ahead of time to defend your (and hopefully our) man.

The sure thing: Judge William H. Pryor, Jr.: Nehemiah--a commenter over at Confirm Them--nails it:

There are A-lists, B-lists, shopping lists, and to do lists.

But even the A listers get some questions. One may question JRB, a few question Luttig, there are questions for Alito and Cox. But there is one nominee that I have not seen one question in all of ConfirmThem. And that is because his conservatism is beyond question.

That nominee beyond questions is . . . the honorable William Pryor.

Shock the world, President Bush: Nominate Judge Pryor!

Head Coach Charlie Weis Signs Contract Extension:

University of Notre Dame head football coach Charlie Weis has signed a new, 10-year contract to continue as coach of the Fighting Irish program through the 2015 campaign.

Weis, who is in his first season at the Irish helm in 2005, signed an original six-year contract (that took him through the 2010 season) when he was hired on Dec. 12, 2004, as Notre Dame's 28th head football coach. This new agreement - that takes effect with the 2006 season -- adds an additional five years to that commitment.

Smart move, ND.

"Sykes would be an excellent Supreme Court justice": So saith Rick Esenberg in today's Milwaukee Journal Sentinel:

One of the judges widely said to be on the short list to replace Miers is Milwaukee's own Diane Sykes, formerly a justice of the Wisconsin Supreme Court and currently serving on the 7th Circuit U.S. Court of Appeals in Chicago.

She would be an excellent nominee. Not only does she have the intellectual hops to play in the show, she has a well-articulated judicial philosophy to which one would expect she would adhere while serving on the court. While Kennedy and Estrich might regard that as rigid, I would suggest that it is principled.

Unlike Miers, there are a number of things that are clear about Sykes. First, she has more than a passing acquaintance with the issues that are likely to come before the court. We know that she has thought about things like the meaning of the equal-protection clause. We know that the idea of a constitutional right of privacy will not be as new to her as, say, the latest developments in string theory would be to me.

We have some sense of her judicial philosophy. We don't know for certain how she would decide any particular case, but we know that she is a judicial conservative. This does not mean that she will consult the GOP platform in deciding cases, but it does mean that she is more likely to see herself as limited by the text of the Constitution and less likely to view her role as making social policy or expanding the areas of our public life that are controlled by the judiciary.

I hold Judge Sykes in high esteem. She joined the Seventh Circuit shortly after my clerkship ended, so I never had the chance to meet her. But I obviously still know folks at the Court, and they all have positive things to say about her.

That having been said, I am not sure that Judge Sykes is quite ready for "the show." Better, I think, to let her spend a few more years at the circuit level, and then give her a strong look when Justice Ginsburg steps down (hopefully a Republican will be in the White House when that happens).

(Hat tip to K-Lo who refers to Sykes as a "sleeper candidate")

Go Dawgs & Joe T3—Beat the Gators!

Are There Limits to Religious Free Exercise? This is the title of a 1700-word Viewpoint column I just published in the most recent issue of Christian Research Journal. (You can find it here). It is not meant to be a treatise on the free exercise clause, but merely suggestive of how the courts should rethink their jurisprudence on it. Here are some excerpts:

Are there limits to this liberty? Should fundamentalist Mormons receive the state's official approval for their polygamous unions? Ought the government allow Muslim citizens to operate under Sharia law, or Christian theonomists under "biblical law"? Should these groups be allowed to operate contrary to, or independent of, the law of the land?....

The Courts should return to the reasoning of the founders. It is a reasoning that allows for the widest possible religious free exercise consistent with preserving and protecting the public good. This, of course, will not eliminate debates on controversial questions over which reasonable citizens disagree. What it will do is provide us with a conceptual framework that puts teeth back into the free exercise clause while reintroducing us to the language of natural law, one that places a premium on the government's obligation to protect the intrinsic dignity of the person and advance the public good.

You can read the essay in its entirety on my website here.

"Justice Alito? Some Say He's a New High Court Favorite": Shannon P. Duffy has a very interesting piece on Alito over at law.com today. Here's a taste:

On the hot-button issues, Alito has been consistently conservative -- so conservative that some lawyers have given him the nickname "Scalito." Roughly translated, the nickname means "Little Scalia," suggesting that Alito has modeled his judicial philosophy after Supreme Court Justice Antonin Scalia.

If Alito is nominated and his record is put under the national microscope, conservatives are likely to be happy with what they see.

In ACLU v. Schundler, Alito wrote the majority opinion holding that a city's holiday display that included a créche and a menorah did not violate the establishment clause of the First Amendment because it also included secular symbols such as Frosty the Snowman and a banner promoting racial diversity.

On abortion, Alito was the lone dissenter in Planned Parenthood v. Casey, in which the 3rd Circuit struck down a Pennsylvania law that required women seeking abortions to inform their husbands.

Alito argued that the Pennsylvania law's restrictions should have been upheld, saying "the Pennsylvania Legislature could have rationally believed that some married women are initially inclined to obtain an abortion without their husbands' knowledge because of perceived problems -- such as economic constraints, future plans or the husbands' previously expressed opposition -- that may be obviated by discussion prior to the abortion."

The case went on to the Supreme Court, resulting in a 6-3 decision that reaffirmed Roe v. Wade and struck down the spousal notification provision of the law. But late Chief Justice William Rehnquist, in his dissent, quoted Alito's underlying dissent and said he agreed with his reasoning.

Something to keep in mind: Courtesy of Professor Orin Kerr:

I've seen some speculation around the blogosphere that Judge Samuel Alito of the Third Circuit may be tapped by President Bush to fill the O'Connor slot, perhaps as early as tomorrow. I know Judge Alito a little bit, and have two quick thoughts. First, Judge Alito is not a Scalia clone, contrary to what some news reports have claimed. Alito picked up the "Scalito" nickname early on, but while clever it's not accurate. Judge Alito is much more of a process-oriented judicial-restraint type than Scalia. While Alito is well-known for his early dissent in Planned Parenthood v. Casey, generally speaking he hasn't approached the job of appellate judge with an ideological edge. Second, Judge Alito is one of the most likable people you'll ever meet. He comes off as modest, quiet, and very thoughtful, but he also has a sharp sense of humor. If picked, I think he will be (and should be) a popular choice in the Senate.

I agree. And while I, too, find the "Scalito" nickname rather clever, I think it should be ditched if Judge Alito is nominated. He is unquestionably his own man (as is Justice Thomas for that matter).

Reading the tea leaves on Alito and Luttig's views on the Second Amendment: Be sure to check out this interesting post by David Lopel over at the Volokh Conspiracy.

More Alito buzz can be found over at WaPo's Campaign for the Court. Here's a taste:

Adding to the speculation were reports by those close to the process that Alito arrived in Washington Thursday night. Asked why the judge came to town and whether he was in chambers yesterday, Alito's clerk laughed and said he would have to take a message. The White House, meanwhile, declined to comment.

"Sam Alito, As I Knew Him": Courtesy of Professor Eric Muller:

Speculation is rampant that Bush is preparing to nominate Sam Alito of the U.S. Court of Appeals for the Third Circuit to the Supreme Court.

Sam Alito was the U.S. Attorney who hired me into the Appeals Division of the U.S. Attorney's Office for the District of New Jersey back in 1989. He was still there as U.S. Attorney when I started at the office in early 1990, but left a few months later to join the Third Circuit.

I had nowhere near the exposure to Alito that I had to his replacement, Michael Chertoff, but I had enough time to form an impression.

He is cerebral. He is very, very smart. In small-ish interpersonal settings he comes off as a bit shy and a touch awkward. (I say that this is so only in small-ish settings because I once saw him deliver a speech, at his farewell dinner, actually, and in that setting, speaking to a big crowd, he was remarkably at ease and exceedingly funny.) He seems younger than his years; there is a boyishness to him. Because his nature is reserved, I found him tough to read for politics. I knew, of course, that his conservative pedigree was impressive, but it was not something he wore on his sleeve.

I'll share my one amusing Sam Alito story. When he left the U.S. Attorney's Office for the Third Circuit, those of us in the Appeals Division decided to give him a going-away present. You know those office ink-pad stamps that say "CANCELLED" or "DRAFT" or "RECEIVED" or whatever? We had one made that said "AFFIRMED," to make Sam's job in criminal appeals that much easier. A little prosecutor's in-joke, you know?

A few months later, an unmarked envelope arrived for us in the Appeals Division. Inside was a slip opinion of the first criminal appeal Judge Alito had heard, with the word "AFFIRMED" stamped about 20 times all over the front page.

We never did figure out who it was from.

Heh.

Manion for SCOTUS!: Look, don't get me wrong, I'd love to see either Alito or Luttig tapped to replace O'Connor. But if the president is set on nominating someone in his/her 60s, then you really couldn't do much better than my former boss, Judge Daniel A. Manion (Seventh Circuit Court of Appeals). If anybody could give Thomas a run for his money in terms of constitutional/statutory purity, it would be Judge Manion. And to top it all off, he's as healthy as an ox and one of the finest men I've ever had the pleasure of knowing. His opinions would send the Confirm Them crowd into a tizzy.

Just for fun, let me give y'all a taste of two excellent Manion opinion. Here's one of my favorites, Ben's Bar, Inc. v. Village of Somerset (upholding the constitutionality of a local ordinance that prohibited the sale/distribution of liquor in nude dancing establishments):

Given the foregoing, we conclude that Section 5(b) does not violate the First Amendment. The regulation has no impact whatsoever on the tavern’s ability to offer nude or semi-nude dancing to its patrons; it seeks to regulate alcohol and nude or semi-nude dancing without prohibiting either. The citizens of the Village of Somerset may still buy a drink and watch nude or semi-nude dancing. They are not, however, constitutionally entitled to do both at the same time and in the same place. The deprivation of alcohol does not prevent the observer from witnessing nude or semi-nude dancing, or the dancer from conveying an erotic message. Perhaps a sober patron will find the performance less tantalizing, and the dancer might therefore feel less appreciated (not necessarily from the reduction in ogling and cat calls, but certainly from any decrease in the amount of tips she might otherwise receive). And we do not doubt Ben’s Bar’s assertion that its profit margin will suffer if it is unable to serve alcohol to its patrons. But the First Amendment rights of each are not offended when the show goes on without liquor.

And here's a snippet from my very favorite Manion opinion, Doe v. Heck (holding that rogue social workers violated the rights of parents and students under the First, Fourth, and Fourteenth Amendments in their investigation of a private Baptist school, in which the workers treated the school's corporal punishment policy as per se child abuse, but nevertheless reluctantly granting the workers qualified immunity under applicable Supreme Court precedent):

In our view, there is no basis for concluding that when a minor child is entrusted to the care of a private school in loco parentis his reasonable expectation of privacy, vis-á-vis government officials, differs in any material respect from that which he would otherwise expect to receive at home . . . . Furthermore, it is entirely reasonable for parents who place their children in private schools, along with the teachers and administrators of those schools, to expect that the parents’ express delegation of parental authority to school officials will be both acknowledged and respected by government actors . . . . [W]hen, as in this case, the government conducts a warrantless search of a religious or parochial school, or seizes a minor child on the premises of such a school without a warrant, these actions implicate the constitutional rights of the school, child, and parents under the Free Exercise Clause of the First Amendment . . . . Indeed, requiring caseworkers to obtain the equivalent of a warrant before searching the premises of a private school ensures that the constitutional interests of the child, parents, and school, are safeguarded, while at the same time preserving the state’s compelling interest in protecting children from being abused.

Furthermore, although the Supreme Court has not “set out exact metes and bounds to the protected interest of a parent in the relationship with his child," the fundamental right of parents to direct the upbringing of their children necessarily includes the right to discipline them. Additionally, the fundamental right of parents to discipline their children includes the right to delegate that right to private school administrators. And while it is not our place to enter the longstanding fray over the appropriateness of corporal punishment, we recognize, as the Supreme Court has, that the view that “corporal punishment serves important educational interests” is deeply rooted in this republic’s history. We also acknowledge that people of many faiths, and perhaps some of no faith at all, genuinely believe in the truth of the oft-recited phrase: “Spare the rod, and spoil the child.”

However, no matter one’s view of corporal punishment, the plaintiff parents’ liberty interest in directing the upbringing and education of their children includes the right to discipline them by using reasonable, nonexcessive corporal punishment, and to delegate that parental authority to private school officials.

Now, that's what I am talkin' about, folks!

Oh, and I would realllllllllllllllllly like to be a Supreme Court clerk too. :)

"Judge Samuel Alito on Federal Courts and Appellate Advocacy": My good friend Mike has an insightful post up over at his most excellent blog, Crime & Federalism, on his first-hand observations of Judge Alito in a class-room setting. Here's a taste:

People who know better than I are that predicting Judge Samuel Alito (CA3) will be the President's choice to replace Justice O'Connor. During my second year in law school, Judge Alito guest-lectured in my federal courts and legal ethics classes. His intelligence, graciousness, and humility were admirable.

. . . .

Indeed, a lot of his lecture focused on public perception of the court and respect for democratic procedures. Legal proceedings, and judicial opinions, he said, should be transparent because the public has a right to see clearly why a judge reached a given conclusion. In other words, if a case is truly law, and not politics, a judge has no reason to fear public scrutiny. This respect, and his overall humility, impressed me.

. . . .

He also focused intently on jurisdiction. Respect for separation of powers (and the democratic processes underlying jurisdictional rules) demands strict application of jurisdictional rules.

These are just random bits, of course, but they're consistent with what others are saying, namely that he's a "process-oriented judicial-restraint type" of judge.

Reid must hope folks have bad memories:
Reid and Leahy today:

"Interest groups are not entitled to an extraconstitutional veto over Supreme Court appointments," Senate Minority Leader Harry Reid, D-Nev., and Vermont Sen. Patrick Leahy, the ranking Democrat on the Judiciary Committee, argued in a letter they sent to Bush on Friday.

This is nothing short of astounding!

Senator Reid, do you remember those memos where it was found that schoolboy Senate Democrats did what they were told by their schoolteacher left-wing interest groups? Surely you haven't forgotten how you -- at the behest of the PFAW, NARAL, etc -- targeted Miguel Estrada just because he was Latino? Remember how Dick Durbin's memo said Bush's judicial nominees were all "nazis" anyway?

Senator Leahy, do you remember how you delayed hearings after Elaine Jones at the NAACP told you not to have a heairng for any 6th Circuit nominees in order to manipulate the outcome of an affirmative action case?

Harriet Miers was not supported by either party. It was hardly an "extraconstitutional veto" by "interest groups."

The whole world can read the 30 pages of memos where Senate Democrats repeatedly take direction from liberal interest groups.

There's an interesting column on the possibility of higher ed reform by historian Wilfred McClay for Opinion Journal today. In part, he builds on the Chronicle piece by Strauss & Howe I blogged last Friday. (The Boston Globe ran a short story on Strauss & Howe last Sunday, online here.) McClay teaches at UT-Chattanooga and is involved with ISI's Democracy Project.

Justice Scalia's review of Steven Smith's book, Law's Quandary, is now online. What's the book about? Here's Scalia's explanation:

Law’s quandary, then, is that we believe like legal realists but act as though there were indeed some omnipresent, overarching law. Smith proceeds to discuss why the broad variety of twentieth-century jurisprudential movements—sociological jurisprudence, legal realism, legal process, law and policy (including law and economics), law and society, law and philosophy, critical legal studies, law and literature, feminist jurisprudence, critical race theory, legal pragmatism and, oh yes, textualism—try but fail to resolve this quandary, try but fail to explain “how the law makes sense without ‘the law.’”

Please let it be Alito or Luttig: Jan Greenburg of the Chicago Tribune, whose coverage of the Miers nomination was nothing short of outstanding, apparently has the scoop:

A senior administration official said that after concluding Wednesday that Miers must withdraw, the White House focused on judges who were in the running to replace Justice Sandra Day O'Connor before President Bush chose Miers, his longtime adviser and current White House counsel.

The group includes Samuel Alito, J. Michael Luttig, Priscilla Owen and Karen Williams, the official said. All four judges had been interviewed by Bush or top administration officials and indicated they would accept the nomination if asked.

. . . .

Given the harsh reaction to Miers, the White House feels far less pressure to nominate a woman, sources said, even though the nominee would replace O'Connor, the first woman on the court and one of only two female justices. O'Connor, who announced her retirement in July, has agreed to serve until her successor is confirmed.

That puts the spotlight on Alito, whose philosophy, intellect and Italian heritage have drawn so many comparisons to Justice Antonin Scalia that he is sometimes called "Scalito," and Luttig, a favorite of many legal conservatives and GOP senators.

. . . .

Atty. Gen. Alberto Gonzales, long believed to be Bush's first choice, is not under consideration, the administration official said. Conservatives who ardently opposed Miers would be no happier with Gonzales, and he would face demands to disclose documents from his service in the White House, as did Miers.

Also not under consideration are federal appellate Judges Michael McConnell, Janice Rogers Brown, Edith Brown Clement, Edith Jones and Emilio Garza, sources involved in the process said. All have been mentioned as possible nominees in the past, but the White House has ruled them out for the vacancy, several sources confirmed.

This is very good news. Things are finally starting to fall into place.

Dubya's Miss Harriet debacle: Was this a positive for the conservative movement?

The Washington Post contains this interesting commentary on the Miss Harriet mess:

Without doubt, Miers' nomination stirred passions among conservatives that have lain dormant for much of the Bush presidency. Richard Viguerie, an architect of the conservative movement, said activists held their tongues for nearly five years as Bush expanded the federal role in education, imposed tariffs on imported steel, secured a prescription drug benefit for Medicare, and oversaw the rapid expansion of federal spending.

"But we did that because it was all about the courts, all about the courts, all about the courts," Viguerie said. "Then when he betrayed us on a Supreme Court nominee, that just woke us all up."

For years now, conservatives have watched Dubya launch a domestic agenda worthy of an Al Gore or John Kerry. Those of us declining to vote for Dubya and criticizing him for this agenda were admonished to get back in line. There will be a Supreme Court vacancy, maybe two or three, and Dubya will make things right.

In a way, I'm glad he didn't make things right when selected Miss Harriet. Perhaps this willingness to challenge the President on his choice of a justice will spill over to other things. It needs to. Dubya has gotten a free pass for too long. It's time for conservatives to start acting like conservatives; to stand and fight for principle no matter what party affiliation the Executive holds.

Deconstructing Hugh. Steve Dillard quotes Hugh Hewitt and critiques him handsomely. I would like to go through each sentence of a portion of Hewitt's skreed:

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.

Close associates are probably the worst people to assess Harriet Miers, since her ascendancy to public prominence and personal trust had absolutely nothing to do with her possessing the qualities required to be the sort of justice that will help move the Supreme Court's intellectual center of gravity rightward. None of these associates, including the President, claims to have interacted with Ms. Miers on the variety of issues, problems, and cases--conceptual and factual--that would reveal a cast of mind sufficiently suited to sit on our nation's highest court. For this reason, those of us who support the President sought to find something in Ms. Miers' record that would confirm what Hewitt is claiming her associates saw in her, since we believe that the President would not apply the bigotry of low expectations to his supporters by chiding us for seeking more evidence about his nominnee. Unfortunately, when we looked at the evidence, we were disappointed. Writes Hewitt:

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?

This is a strange defense: her bad writing is not that voluminous because she did not write much at all. Of course, Hewitt would respond: these items were extracted selectively and taken out of context and thus do not capture the nimble mind and powerful intellect whose talents America has now lost. He could say that. But saying it does not make it so. What would make it so is if Hewitt were to republish the larger contexts from which these quotes were taken so that we could be corrected and offer the appropriate apologies. Hugh published none. He did not offer one example of the hidden wisdom of jurisprudential genius surrounding these numerous and extensive quotes of published pablum from Ms. Miers' essays and speeches.

I'm a huge Hugh Hewitt fan. I love his radio show and read his blog religiously. But Hugh is dead wrong on this one.

I am sorry. I want to be gracious. I really do. But this post by Hugh Hewitt really sticks in my craw:

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.

. . . .

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.

With all due respect, Mr. Hewitt, you're full of it. You're conflating qualifications with process.

Harriet Miers wasn't denied an up-or-down vote in the Senate. She withdrew after it became painfully obvious to all but the most partisan hack that she had no coherent judicial philosophy, questionable writing skills, and a tendency to tell folks whatever they wanted to hear. These are not the attributes I, or many other conservatives, look for in a Supreme Court justice.

And so what if many legal and political conservatives placed pressure on the president and/or Miss Miers to withdraw the nomination? What exactly is wrong with that, Hugh?

Moreover, I don't recall any prominent legal conservative blogger arguing that the Miers nomination should be filibustered or that she should be denied an up-or-down vote on the Senate floor. But hey, why argue the Miers nomination on the merits when you can easily knock down a strawman of your own making.

I am sorry, but if being a member of the Republican Party requires me to engage in the kind of blind and foolish loyalty you've demonstrated over the past few weeks, then count me out.

Oh, and I couldn't help but chuckle at your characterization of those who opposed the Miers nomination as "refus[ing] to entertain any of the many arguments and testimonies on her behalf." Ha! When did you ever express any degree of trepidation over the many troubling revelations about Miss Miers, Hugh? Never, that's when. Your entire line of defense was: "Shut up and trust the president" and "you're distorting her record!" What a joke. No one distorted Miss Miers's record. Res ipsa loquitur.

And while you and other Bush lackeys may be willing to gamble with the future composition of the Supreme Court and the preservation of the Constitution's original meaning, I for one will not.

As much as it pains me to say this, I've lost all respect for you as a serious legal/political thinker. You placed politics over principle and the future well-being of our constitutional republic, and for that you should be ashamed of yourself.

[I realize this is a harsh post, and that I'll take some heat for it; but so be it. It needed to be said]

I realize that this is off-topic and that most of you will have already seen it, but for those who might miss it, I really have to recommend Peggy Noonan's eerily downbeat column today.

McConnell:
I've seen some sentiment around the blogosphere and in our comments (notably PoliPundit) that McConnell is not sufficiently conservative.

I just can't take this seriously. I'm not going to bother rebutting this right now, but if McConnell is indeed the nominee then you will see an immediate and intense outpouring of support from opinion leaders on the Right. My guess is that anyone who doesn't like McConnell is simply unfamiliar with his record.

PS. Side note to PoliPundit: I don't think FDR nominee Felix Frankfurter ever became conservative politically, but he was consistently one of the best Supreme Court justices of his era.

Leonard Leo is and always was our friend: From Rich Lowry over at NRO:

[Leonard Leo] got hammered as a sell-out throughout this process. I haven’t been able to reach him this morning, but my understanding is that he used the fact that he was on the inside to tell the WH uncomfortable truths about this nomination over the last week or so, which was key to the WH reaching the correct answer here.

I am with K-Lo, "[Leo] was the White House's best asset. I suspect behind the scenes in ways we may never know. "

And do any of y'all doubt that when Leonard Leo signed up to be the president's point man on SCOTUS nominees he even considered the possibility that one of the president's nominees would be someone like Harriet Miers (i.e., a person without a discernible conservative judicial philosophy)?

But that is exactly what happened; and that left Leo between a rock and a hard place. My guess is that he simply tried to make the best of a really bad situation before easing out gracefully.

In any event, I am glad Leonard is back at the Federalist Society where he belongs.

McConnell?
Hotline blog reports that they are hearing McConnell's name mentioned frequently this morning, including by a White House official.

If the President disappoints us on this one, he will be making an irreparable mistake. He has much less flexibility now: he must make the base happy. To suggest (such as at SCOTUSblog) that moderate Republicans now have more power is absurd.

McConnell would be a stellar choice.

Dear Miss Miers, I wish you the best of luck. Thank you for