Radioblogger has Ohio Senator Mike DeWine's agreement that the constitutional option is ready and waiting, and many more scoops as well. I am off to Dulles, so no blogging until 2 PM Pacific. Please participate in the poll. And in the effort to embrace the constitutional option as the "right" thing to do.

I am astonished that Democrats and the lefty groups are already on the attack against the son of an immigrant and a public school teacher.

I look forward to hearing more details on the life of Judge Alito's parents. It does not bear on Judge Alito's qualifications to be a justice --which are evident and undeniable-- but it will be an inspiring story, one which the left would do well to respect and not diminish in their rush to slime Judge Alito.

UPDATE: Ron K. of Dallas suggests we form an Axis of Alitists.

Hats off to Patrick Ruffini who provided me with the tools to conduct the poll below after he left his blog. Take a moment and cast your vote.

Where do readers of your blog stand on Alito? Link to this post, and check the "By Blog" section of the results page to see how your readers voted.

Are you pleased with President Bush's nomination of Sam Alito?

Yes
No

If Senate Democrats filibuster Alito, would you favor invoking the Constitutional Option?

Yes
No

Select Your State:
AL AK AZ AR CA CO CT DE DC FL GA HI ID IL IN IA KS KYLA MEMD MAMI MN MS MOMT NE NV NHNJ NMNY NC ND OH OK OR PA RI SC SD TN TX UT VT VA WA WV WI WY">

Results.

Chuck Schumer just argued that it is possible that Judge Alito, as Justice Alito, would roll back the achievements of Rosa Parks. That can only be understood as Schumer's belief that Judge Alito could find segregationist policies acceptable under the constitution. While it is undeniable that the nomination of Robert Byrd would have raised such a question, it is preposterous and indeed base to even hint at such a thing about a distinguished judge and public servant.

Schumer's argument for delay is as predictable as it is unpersuasive. Chairman Specter needs to knock down this nonsense today.

Judge Alito is a great nominee, and as a result a great political battle lies ahead. For a brief overview of Judge Alito's qualifications, see Ed Whelan's post at BenchMemos. Comprehensive background available at ConfirmThem.com's right margin. I am hoping that BeyondTheNews.com or ConfirmThem.com can put together an archive of every opinion, article and speech by Judge Alito to make referencing easier.

Here are some quick links to key opinions from the judge.

Law prof Jonathan Turley just told Katie Couric that the Senate Democrats will "come out of the dugout on this one," and predicted a filibuster.

As I wrote below, the best way to preempt a filibuster is for the nine Republicans thought lukewarm or hostile to the constitutional option to announce, early and often, that they will vote for the constitutional option if Democrats attempt a filibuster based upon ideology. If the Senate Democrats know they are going to lose the vote, they will have to approach this debate much, much differently. And if the MSM loses their filibuster storyline early, it will be difficult to campaign on air to legitimize the practice.

Senator Graham led the way for the nine yesterday, and the other 8 ought to follow:

Senator McCain mccain.senate.gov/index.cfm?fuseaction=Contact.Home
(202) 224-2235

Senator Warner warner.senate.gov/contact/contactme.cfm
(202) 224-2023

Senator DeWine dewine.senate.gov
(202) 224-2315

Senator Chafee chafee.senate.gov/webform.htm
(202) 224-2921

Senator Snowe http://snowe.senate.gov/Webform.htm
(202) 224-5344

Senator Collins collins.senate.gov/low/contactemail.htm
(202) 224-2523

Senator Hagel hagel.senate.gov/index.cfm?FuseAction=Offices.Contact
(202) 224-4224

Senator Specter (202) 224-4254
specter.senate.gov/index.cfm?FuseAction=ContactInfo.Home

Be sure to visit BeyondTheNews.com to get activism tools for this battle. If you have any doubt about what's ahead, visit the DailyKos thread, though it is the typical NC-17 stuff.

And Andy McCarthy is exactly right.

UPDATE: For an example of how a circuit judge ought to apply confusing SCOTUS precedents, read Judge Alito's opinion in ACLU v. Schundler, which upheld a Christmas/Seasonal display on city property, and which Barry Lynn will no doubt view as the coming of the apocalypse:

Because of the splintered majority in Allegheny County with
respect to the constitutionality of the display in front of the
City-County Building, we must employ the standard set out
in Marks v. United States, 430 U.S. 188 (1977), in order to
identify the Court's holding. Specifically, we must examine
the positions taken by the Justices needed to form a majority
and follow the opinion that supports the majority position on
the narrowest grounds. See Katz v. Aetna Cas. & Sur. Co.,
972 F.2d 53, 58 (3d Cir. 1992); Planned Parenthood of
Southeastern Pennsylvania v. Casey, 947 F.2d 682, 693-94
(3d Cir. 1991), aff'd in part and rev'd in part, 505 U.S. 833
(1992).

In the case of Allegheny County, Justice O'Connor's opinion
sets out the position that we must follow. In order to be
sustained, a display would have to satisfy, at a minimum, the
standards set out in Justice Kennedy's opinion, which was
approved by three other Justices, as well as the standards set
out in Justice O'Connor's opinion. Although Justice
Blackmun also voted to sustain the display at the City-
County Building, his position seemingly imposes more
formidable standards, and a display would not have to meet
those standards in order to survive. Accordingly, in
considering how the modified Jersey City display now before
us fares under Allegheny County, we will focus on Justice
O'Connor's opinion. Before doing that, however, we will first
test the modified Jersey City display against the teachings of
Lynch.

The display that the Supreme Court sustained in Lynch
resembles the modified Jersey City display in several
important respects. Both included one or more religious
symbols owned by the city (in Lynch, a creche; in Jersey City,
a creche and a menorah), as well as a variety of secular ones.
Both included one or more secular signs or banners (in
Lynch, a banner proclaiming "SEASONS GREETINGS"; in
Jersey City, two signs that read: "Through this display and
others throughout the year, the City of Jersey City is pleased
to celebrate the diverse cultural and ethnic heritages of its
peoples."). Accordingly, Lynch appears to support the
constitutionality of the modified Jersey City display unless
some constitutionally significant distinction can be shown.

One potentially important difference is that the display in
Pawtucket was located on private property in the center of
the city's business district, whereas the Jersey City display
was situated in front of City Hall on public land. In Lynch,
neither the opinion of the Court nor Justice O'Connor's
concurrence seemed to attribute constitutional significance
to this fact. (The opinion of the Court noted the fact in
passing at the beginning of the opinion, 465 U.S. at 671, and
Justice O'Connor did not mention this fact at all.) However,
Justice O'Connor's opinion in Allegheny seemed to place
greater emphasis on this aspect of the Pawtucket display,
492 U.S. at 623, 626 (O'Connor, J., concurring), and
therefore we will discuss this potentially significant
distinction in connection with our discussion of Allegheny
County.

With the possible exception of this factor, however, we see
no reasonable basis for distinguishing the modified Jersey
City display from the display upheld in Lynch. The plaintiffs
and our dissenting colleague suggest that the cases can be
distinguished on the ground that in the modified Jersey City
display "Santa Claus and Frosty the Snowman clearly do not
constitute separate focal points or centers of attention
coequal with the Menorah and the Nativity Scene," Appellees'
Br. at 14, but we see no basis for this distinction.
Appendices A and B to this opinion, which depict the
modified displays on both sides of City Hall in Jersey City,
speak for themselves. In the modified display on the right,
the sleigh is just as much a focal point as the figures in the
nativity scene. And in the modified display on the left, the
tree is just as much a focal point as the menorah.10

UPDATE: Andrew Sullivan disputes my characterization of the tactics of the left from my New York Times column of last week as indicating that I am "empirically" nuts. Another fine bit of nuance from Andrew. He gets there by taking my comments from the context of SCOTUS nominations and applying them to every political situation ever encountered. If he is in fact so dense to read it that way --when neither I nor the editors at the New York Times did-- that says more about his analytical abilities than it does my sanity. But any serious student of the SCOTUS nomination tactics of Dems and GOP from Bork forward --especially the GOP tactics surrounding the nomination of Justices Ginsberg and Breyer-- will not argue with my characterization. If Andrew has empirical evidence about GOP misdeeds vis-a-vis Justices Ginsberg and Breyer, perhaps he'll share it with us.

N.Z. Bear and Instapundit are rolling out Porkbusters 2.0.

Lileks: "Sad as this whole Scooter Libby thing is, I say we just censure and move on."

(But James, your link to Mommy Knows Best --now featuring three five star reviews!-- is broken.)

Late into the night, new guests were arriving at my hotel, coming to D.C. to honor Rosa Parks. One of millions of examples why:

"I can honestly say that without Mrs. Parks, I probably would not be standing here today as secretary of state," said Rice, who grew up in Birmingham, Ala.

From Michael Barone's "bottoming out" column:

Last week's four events turned some things around. Now Bush and his people must act.

And from an interview with Jazmes Webb, in which he repeats his criticism of the Iraq invasion:

How would you assess the overall adequacy of the U.S. military today?

I think it's thin. It's thin; the Navy, the Army and the Marine Corps. I wouldn't have a strong comment about the Air Force. The worry that I have (is) with the Navy. How these issues are debated depends on what the national security crisis of the moment is. Five or six years ago people were trying to say that the Army was too large. But what you're seeing right now with the Navy in my view is it needs some better advocates to really argue about the strategic issues, which is where the Navy is the strongest.

The whole case for sea power.

Exactly. Force projection without having to negotiate basing rights. These sorts of things. The aircraft carrier concept is under attack again and yet every nation that becomes a major power tries to in some way replicate what we've been able to do. And it's a pretty dangerous thing to start undoing that. So the Navy needs better advocates.

What about the Army and the Marine Corps?

When (former Army Chief of Staff Gen. Eric) Shinseki was talking about a 10 division Army doing a 12 division job, he was right. Even before the Iraq situation. I was a proponent of downsizing the Army and the tactical Air Force, but I think particularly in the Army's case they went too far. The Marine Corps, I think the Marine Corps has done very well in terms of its force-structure size. The question is how it's being used. When you're having these guys do two or three tours over there in Iraq and the Marine Corps taking the higher casualty rates and being out where they are, that's a question of national policy rather than force.

HT: RealClearPolitics

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.