3 inquires 4 miers

• the first thing the senate judiciary committee ought to ask harriet miers is what they asked chief justice john roberts: is there a right of privacy? roberts defended privacy rights, but that doesn't make it a dead issue.

i still think the best way to start the questioning is to ask: do you have a right of privacy?

• the second thing they should ask miers is one they should've asked roberts but didn't (unless i missed it somehow): does the 'advice and consent' clause require the senate to vote on a nominee?

the beauty of the question is that it's an important constitutional issue and not a hypothetical one, but it will never come before the courts.

judicial nominees might be able to avoid constitutional questions that may be part of cases they'll have to decide if confirmed, but they have no such excuse on this one. the doctrine of separation of powers will prevent the courts from ever hearing a case involving advice and consent.

thus it provides an opportunity for nominees to show how they reason and make decisions—if senators ask them to give arguments for and against both sides of the question in addition to stating their own opinions.

i already wrote on the subject on 8/1 and 9/15, but it looks like senators don't read this blog. surprise!

• the third question: what advice did you give the prez regarding the legality of invading iraq?

she can't use attorney-client privilege to evade this one: the question isn't what her client said, but what she said to him. the privilege doesn't protect the attorney.

if she claims she said nothing on the subject, that tells us bush either didn't care about legality or didn't respect miers' opinion enough to ask her.

if the white house claims executive privilege and/or national security interests prevent miers from talking, it's as good as admitting the invasion was illegal and they knew it.