So there's been no substantive talk of Alito here as yet. I don't really know anything about him, save that he is vastly more qualified than Miers. No doubt plenty more will come out in the next few days and weeks. Tentatively, though, I think Jonathan Adler's comments in his Tuesday Wall Street Journal opinion piece are probably right on the mark:

We may not all agree with all of their decisions, but we will respect their judgment, appreciate their analyses, and admire their commitment to the law. As a law professor, I look forward to the opportunity to study Justice Alito's future opinions with my students, as I am confident a Justice Alito would contribute well to a Supreme Court of which we can all be proud.

President Bush announced this morning the nomination of Judge Sam Alito of the U.S. Court of Appeals for the Third Circuit to the U.S. Supreme Court.

The Democrats are of course vowing to fight, but this is probably just the move Bush needed to make to rally his base after the Libby indictment and failed Miers nomination.

Now that the nightmare is over, we are faced with the same question that plagued us a little over a month ago--who will the President nominate to replace Justice Sandra Day O'Connor? The same names are being bandied about this afternoon that were being mentioned the last time around, which raises a few issues in my mind:

1) What effect will the President's unsuccessful nomination have on the process? The usual suspects are being thrown around as potential candidates (with the notable addition of Senator Cornyn to the list), which causes me to think that the popular answer is "nothing." I initially thought that President Bush would not be able to go back to the same pool after the unpleasantness that followed the last nomination. However, the more I thought about it, the more it seemed that all of the negative spin on other potential candidates was generated by Miers herself, who has now been completely discredited.

2) What role will Harriet Miers have in the selection process? As reported here, Miers will remain on as White House Counsel. This is the position from which she cleared the way for herself the last time around. Will she be capable of peforming an about-face in her opinions on the people she had previously vetted?

3) How will White House allies who supported Miers handle the situation if it appears that someone from the previous "short list" appears likely to garner the President's nomination? For example, Brit Hume and Leonard Leo either explicitly or implicitly backed the Miers nomination. I'm not quite sure if we are in the rumor mill business here, but the word is that at least two members of Leo's Four Horsemen have spent the morning and early afternoon trying to make nice with the former short-listers in case they need to back them in the future.

(My) New York Senator Charles Schumer indicates it may be, saying "[s]he would not get a majority either in the Judiciary Committee or the floor."

One of the important points in the article is that to access most of Miers' substantive writings, the Bush Administration would have to waive executive privilege, something they have ardently fought for in the past and not something they are expected to even consider doing.

And Harvard Con Law Prof Charles Fried has this to say in the Boston Globe:

We may grant that Miers is intelligent, decent, and hard-working. The hearings must convince us that she has the ability to understand both sides of a question, to reach sensible conclusions connected to established law, and to explain those conclusions in words that we can understand, whether or not we agree with them.

Miers, the "loopy lady" who used to write to then-Governor Bush things like "You are the best governor ever — deserving of great respect," and who desribed him as "cool" and "the greatest!" may at last be on her way out of the running for Supreme Court Justice.

Earlier, Pennoyer noted that the early hearing date for Miers:

has to be encouraging news to those who believe that Miers will crash and burn before the committee, as the relatively early start date allows her little time to prepare. However, this may also be a signal that Miers may have been better prepared to face the committee than many people had originally thought. Other possibilities include (1) the President has lost confidence in the nominee's chances and is sending her before the panel before she is prepared in order to put pressure on her to withdraw her nomination and (2) the move is scheduled in order to head off any unfavorable press about the nominee that might be surfacing in the next couple of months.

Crash and burn it may be... and soon. Hope and support for Miers appears to be dwindling. Time, it seems, is not working in her favor. An expedited hearing will likely not counteract the public and Senatorial vetting process.

Contrary to my prior speculation, Harriet Miers's confirmation hearings before the Senate Judiciary Committee will begin November 7. This is surprising to me, considering all the commentary suggesting that they would not begin until possibly a month later so the nominee could adequately prepare to answer questions on subjects that she probably hasn't thought much about in her role as a corporate attorney, lottery commission member, or member of the President's staff (read: "I need to sort of bone up on this a little more").

This has to be encouraging news to those who believe that Miers will crash and burn before the committee, as the relatively early start date allows her little time to prepare. However, this may also be a signal that Miers may have been better prepared to face the committee than many people had originally thought. Other possibilities include (1) the President has lost confidence in the nominee's chances and is sending her before the panel before she is prepared in order to put pressure on her to withdraw her nomination and (2) the move is scheduled in order to head off any unfavorable press about the nominee that might be surfacing in the next couple of months.

Of course this is all conjecture, but one thing is certain: I am very much looking forward to seeing how this untested nominee will handle the pressure over the next couple of weeks.

In case JNOV readers were inspired by Pennoyer's post suggesting a crash course in Con Law for Miers, details of where to send used materials (and photos of you sending them) are at StudyGuidesforMiers.com.

Some word has been spread in recent days regarding information certain media sources have uncovered that would cast Harriet Miers in an unfavorable light (gushing birthday cards aside) before her confirmation hearings. Mentioned as possessing the information is the New York Post, which is of course owned by NewsCorp, which also owns Fox and Fox News. With the tack that Fox has taken on this nomination, the word is that the Post is waiting for the White House to back off its smear campaign of the other former candidates for the seat before it acts on the information.

The real shame is that nobody took care of this business before the nomination was announced. Because of the unique position Miers assumed in the selection process, she was in a position to eliminate other candidates based on perceived ethical or philosophical problems, but nobody was in the position to eliminate her. Now it will be up to the public and their representatives in the Senate to vet the vetter. However, this process will probably not take place until mid-December now so that Miers can take a crash course in Con Law before the hearings (sorry--I know other blogs have done it, but I couldn't resist). Is a Miers withdrawal possible before then? We'll have to wait and see.

A good account of the latest attacks launched by the White House on Miers's critics from Confirm Them appears here. Though this e-mailer's criticisms are blatantly one-sided, he does make some salient points that express many of the frustrations that the base that elected President Bush are feeling right now. One of the platforms on which Bush ran in the 2004 election was that he would appoint qualified judges that will interpret the Constitution closely and not legislate from the bench. While Miers's judicial philosophies remain a mystery, Miers--by all accounts--seems to be a "lawyers' lawyer." While this may seem refreshing to those in the general public who have had no experience with the important role our federal courts play, those who have had first-hand experience in the area surely know the difference between a "lawyers' lawyer" and a Supreme Court Justice.

While there was some initial delight (albeit vicariously embarrassing) from those who oppose the Miers nomination over her supposed "Warren" gaffe, an article today in the Washington Post sheds some more light on the issue.

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It seems that those toeing the party line (a phrase that often irks me, as someone it has someone else, thankfully) by calling those who oppose the Miers nomination "elitist" and by disparaging the qualifications of the other potential nominees (i.e. Brit Hume) have taken the lowest road possible. Once it became apparent to those close to the selection process that Miers had vilified the other candidates in order to clear the way for her own nomination, it was not completely unexpected that the White House would feed talking points to the media focusing on the same issues. Professor Zywicki over at Volokh addressed the "elitist" and "sexist" issues today in fine fashion. His point that almost none of this dicsussion would exist had the President nominated Judge Batchelder or Judge Owen (despite their education at law schools seemingly on par or even rated lower than Miers's SMU) seems well-taken; those candidates have proved their intellectual heft to the public. Criticism of those judges would surely not be attacked as "sexist" or "elitist."

Ann Althouse wonders whether Justice Scalia's concern over televising court -- and especially Court -- proceedings is really one based on maintaining a good reputation with the public:

I suspect that what Scalia is concerned about is not some much those "real people" with legal problems, but the image of the justices. If we could see them pushing with questions and interrupting decent lawyers, maybe regular people would find them narcissistic, pompous, rude, or just plain strange. They'd be ridiculed. "The Daily Show" would run clips. Some folks like me would watch the uncut show on C-Span, but most would experience the Court in the context of politics and humor. The question is whether that might be good for them.

Althouse mentions she would watch the uncut show. So would I. And I suspect a lot of law students and pre-law students would. Isn't this a good thing? And I suspect that recurring (and perhaps well-deserved) opportunistic humor would be short-lived.

Mier's nomination seems to have taken everyone by surprise. As to competence, I think she's probably a "lawyer's lawyer", so to speak. As White House Counsel, any President would likely want someone they have known and trusted for a long time, but also someone that was awfully good. So I don't doubt that she is a more than competent lawyer. But competence as a lawyer doesn't make one qualified to decide the most complex of legal issues, often relating to deeper theoretical concerns -- matters that (as Todd Zywicki points out) we have no evidence that she has ever thought about.

Of course, I -- like everyone else -- don't know enough about her to really make an informed conclusion about her or what she believes in.

But is she even confirmable? Perhaps she should have consulted with Article III Groupie and "just said no" to the nomination. Tom W. Bell offers the most intriguing theory I've seen so far, suggesting Miers is the sacrificial lamb to make way for someone like Michael McConnell:

"You wanted credentials?" Bush will drawl, "My new nominee has 'em in spades."

Wishful thinking but, alas, I fear it is not true!

In the new weekend edition of the WSJ, an editorial went over the "Chick List" of potential O'Connor replacements:

But the feminine Big Four are Edith Jones, Priscilla Owen, Janice Rogers Brown, and Alice Batchelder, all appeals-court judges. Each is a judicial conservative of intellectual heft and with more experience on the bench than Judge Roberts. None, however, is as bullet-proof as Judge Roberts, who managed to pursue a 25-year career in law without leaving much of a public record of his views on hot-button issues.

Recall that I earlier commended Todd Zywicki's support for Jones or Batchelder. The editorial seems to favor Jones, and has this to say about Brown (my first choice):

If anything, Judge Brown is even more outspoken. She once referred to colleagues on the California Supreme Court as "philosopher kings" when they overturned a law requiring parental consent for minors who wanted abortions. She's an advocate for property rights, and she's called big government "the opiate of the masses" and the "drug of choice" for many segments of society. In 2000, she wrote the opinion affirming Proposition 209, which banned racial and gender preferences in state hiring and contracting.

Her credentials aren't as impressive as Judge Jones's, and she might be too libertarian for Mr. Bush. But if nominated, her personal story would complicate matters for liberal interest groups. The NAACP would have to decide whether to oppose the confirmation of a daughter of a sharecropper from Alabama. She was confirmed to the D.C. Circuit earlier this year as part of the filibuster-ending deal in the Senate.

NY Times:

Chief Justice William H. Rehnquist died Saturday evening at his home in suburban Virginia, said Supreme Court spokeswoman Kathy Arberg.

A sad day indeed.

I had earlier questioned (before Roberts' nomination) whether the O'Connor replacement should be a woman. Obviously, the nominee was not. But a woman to replace Rehnquist certainly would be remarkable: the first female Chief Justice (assuming nobody is elevated and that Roberts isn't now moved to the newest spot, both of which I think very unlikely). Perhaps the Bush Administration planned for just this. Although there was a lot of speculation that Rehnquist's death was imminent, I never heard any solid support. The Administration, however, likely had a very good idea exactly how ill the Chief Justice was and may well have planned to nominate a woman (soon) for Chief.

Given how recently candidates were reviewed by the Administration, a second nominee could be chosen very quickly. This time, though, the wait will be punctuated with sorrow and will exist to allow us all time to memorialize Chief Justice Rehnquist. Unfortunately, the 2005 October Term is fast approaching, and the wait will likely be shorter than one would like.

UPDATE: Or not... Roberts it is.

A lot of people have suggested that the new Supreme Court justice ought to be a woman. Apparently (via How Appealing), this will be voiced on USA Today's op-ed page Wednesday (by Tony Mauro).

I'm somewhat ambivalent as to whether or not sex should really be a factor one way or the other. That said, it seems that the many of the best candidates (whether on the speculative short-lists or not) are women. Professor Todd Zywicki identifies two outstanding choices: Fifth Circuit Judge Edith Jones and Sixth Circuit Judge Alice Batchelder. Both are impeccably qualified, for the reasons Zywicki discusses.

And I'm a little surprised at so much Gonzales speculation. After all, mightn't Gonzales be "Spanish for Souter", even if "Al Gonzales is a great friend of [Bush]."