Ed Whelan offers some smart advice to Republicans on the Senate Judiciary Committee on the selection of Justice Souter’s replacement. The larger point to keep in mind is that legal conservatives need to identify what they reasonably can and want to accomplish. I think it entirely unlikely, in fact impossible, that they will defeat a nominee unless the president makes an egregious error in selecting someone unqualified or ethically challenged. He won’t — he’s smarter than that. So what should they do?

I think this is another opportunity, as all Supreme Court nominations are, for public discussion and education about the role of judges and competing judicial philosophies. Conservatives would be wise to not aim for “gotcha” moments or devise some pie-in-the-sky approach to thwarting the nomination. Instead they should in effect say to the American people: “This is what they stand for; this is what we do.” The “they” are proponents of judicial activism, of judging by the pull on a heartstring, and of disdain for textual interpretation.  The “we” are those who follow the example of Chief Justice Roberts’ judicial humility, aim to “get it right,” and recoil at the notion that judges get to impose their subjective views of “fairness” on the rest of us.  It is extremely important for voters to understand what all that entails and where it leads.

As to what this entails, it means that judges fancy themselves as do-gooders, out to enact personal notions of fairness without regard to the will of the people as expressed by legislative or Constitutional statutes. How does such a judge come to conclusions once freed from the obligation to interpret text? Why do they think they hold special insight into our nation’s problems? Why isn’t the judge’s sole task to delve into the meaning of the text before the court? And so on. Let the nominee explain. Voters may be shocked to hear that the judge is going to lean back in her chair, consult her conscience and follow her personal values wherever they may lead. (And if that’s the case perhaps the nominee should share those values at length with us so we know what we’re getting.)

And voters should hear where this leads. I suspect that the nominee will follow the “Ginsburg rule” — “no hints, no forecasts and no predictions.” But the nominee may have written opinions, writings, and speeches — or views on past cases which suggest what the nominee’s judicial philosophy portends. (Well, unless Obama is silly enough to select a blank slate like Justice Souter.) And we can, judging from the other similarly-inclined justices, see what we get from relying on value-laden judging — on everything from gay rights to gun control to race relations. The value-laden judges have a set of policy objectives and the public should hear what they are.

None of this will change the result of the confirmation proceeding. But it isn’t supposed to. It is supposed to educate the public about just how extreme and unwieldy is the entire philosophy of judicial activism and how little respect its proponents have for democracy. And if it is done effectively, voters may reconsider whether that’s part of the “change” they wanted.

Watching hysteria build around the swine flu outbreak — so similar to the unwarranted hysteria about avian flu not so long ago — I have been skeptical that a catastrophe is really likely to unfold. Advances in medicine have been so great in recent decades — particularly the development of antibiotics and antivirals and in gene sequencing — that it seems to me highly unlikely we will see another pandemic of the order of the 1918 Spanish flu outbreak which killed tens of millions. But as a layman — and one whose last science course was in high school (!) — I don’t feel qualified to question the alarmists. That’s why I was so gratified to read in this morning’s Wall Street Journal this article by Peter Palese. Unlike me, he knows a lot about the subject; he’s the chairman of the department of microbiology at the Mount Sinai School of Medicine in New York. And he also thinks the scare-mongering is overblown. The headline sums up his argument: “Why Swine Flu Isn’t So Scary.” He concludes: “The most likely outcome is that the current swine virus will become another (fourth) strain of regular seasonal influenza.” Perhaps Joe Biden should read this before he advises Americans again to stay off of airplanes.

Arlen Specter’s switch in time (for the primary, that is) has raised two issues: who will assume the Ranking Minority Chair on the Senate Judiciary Committee and what the party make-up of that and other committees will be now that he and very likely Al Franken will increase the Democratic number to 60.

As to the first, Orrin Hatch is next up in seniority, but he has already served for six years in that spot. He therefore would need a “waiver” from the Republican conference. Sen. Chuck Grassley is next in order but is the Ranking Minority Chair on Finance. Under Republican conference rules he can not hold both chairs. However, he is term limited out at Finance come January 2011, so speculation is rampant that he might give it up now for Judiciary. Speaking to an informed source in GOP leadership, I was told that leadership currently believes that he doesn’t want to leave Finance now. However, some sort of deal to allow another member to take the Ranking Minority Chair on Judiciary until 2011 might be in the works. Next would be Jon Kyl but as Whip he would not serve. Then comes Sen. Jeff Sessions. As a former judge he, some think, would be well suited. He is a favorite of the conservative base which is now “lobbying” for him around the blogosphere.

There is much angst around the Right blogosphere that somehow Sen. Mitch McConnell is thwarting Sessions’s appointment as Ranking Minority Chair. This is simply wrong. McConnell has good relations with all three (Grassley, Hatch and Sessions) and is, sources tell me, content with them all. Moreover, it isn’t his call. The Senate Judiciary members vote on their Ranking Minority Chair. So stay tuned. In any event, conservatives will be better represented — much better — now that Specter is gone from the Ranking Minority Chair.

Then there is the issue about how many Republicans and Democrats sit on that and other committee. Senate Resolutions 18 and 19 set the committees’ make-up by name not by number or ratio. Specter therefore gets to stay put, albeit no longer as Ranking Minority Chair.

At the beginning of the Congressional session, McConnell and Harry Reid bargained out numbers which McConnell could appoint to each committee. Not surprisingly Reid has begun angling for more Democrats and fewer Republicans, something already underway by virtue of Specter’s migration from R to D on Judiciary (where the ratio will now be 12 to 7). The battle will continue. Without Franken there yet, the Republicans can filibuster a new resolution which might radically alter the ratio on committees. But once Franken arrives all bets are off.

The bottom line: Republicans will have a more conservative advocate in the Minority Ranking Chair on Judiciary no matter who is appointed, but they stand a real risk fielding fewer members on that and other committees. Never forget that elections have consequences. And if you didn’t think Norm Coleman had an incentive to battle on in his court case before, this is one more reminder that his colleagues will be cheering him to hang on to the bitter end.

Secretary of Defense Robert Gates warned recently against a military attack against Iran’s nuclear program. Gates brings three arguments to the table against a strike:

1. it would only delay Iran’s program;

2. Iran’s resolve to rebuild its program and acquire weapons would be strengthened by the attack;

3. Iran’s hatred for those who attacked its program would only increase.

Earlier this week, former IAEA director Hans Blix added the weight of his opinion to this view:

“The consequences of an attack on Iran would very likely be a nuclear-armed Iran,” Blix said. “There would be a delay, but nuclear weapons that are hypothetical today would be certain in a few years time. Secondly, an attack would probably have horrible consequences on the supply of oil coming through the Persian Gulf; it would impact the world economy.”

One could add to the above that Iran’s nuclear program would be forced even deeper underground, a claim occasionally voiced by Blix’s successor, Mohammad ElBaradei.

Now, far be it from us to wish to contradict such well informed officials and international civil servants. Still, it’s hard to see why Iran getting nuclear weapons in, say, three or five years’ time is worse than Iran getting them in six months’ time. It’s also hard to see how Iran’s current resolve to acquire nuclear weapons is somehow weak enough to be broken by polite diplomacy; so far, at least, this approach has not worked. And it is hard to imagine that Iran’s hatred for Israel or the U.S. could get worse — or how hatred at the present levels is so inconsequential that one can dismiss it, with or without nuclear weapons. Blix’s distinction between weapons being “hypothetical today” and “certain in a few years time” is also unconvincing. For not stopping them today means that weapons will be more certain sooner than if an attack were to occur. Stopping them through military action might also fail to work in the end — but if the international community chooses inaction based on this false choice, it will get a nuclear Iran for sure. When, it is hard to tell without the relevant intelligence — but inaction basically means that our policy rests on the hope the Iranians will either never overcome the technological hurdles or will give up on their quest out of their own volition.

The only serious point raised by Blix and others is that an attack could have an impact on the supply of oil — then again, there were three major wars in the Persian Gulf between 1980 and 2003. They disrupted the supply, alright. But we survived, and the price of oil, after initial shocks, returned to manageable levels. Conversely, massive price hikes, such as the ones between 2006 and 2008, had much less to do with war, and more with factors mostly exogenous to the Persian Gulf. But if Iran became a nuclear weapons state, one can be sure that its long reach and penchant for destabilizing neighbors and dominating the region will guarantee that oil prices remain very high for a very long time to come.

So overall, the price of not attacking is very bad. And the price of attacking might be, at worst, just as bad.

Whether a military strike can retard Iran’s program and to what extent, we should leave to others to determine. What impact that could have on the regime’s survival, nobody seems to know — or give thought to.

But those who oppose a strike better come up with more convincing arguments. So far, all this sounds like a pretext for doing nothing, which is basically what the international community has done since Iran’s program was exposed seven years ago.

Chyrysler’s bankruptcy may not be quick — because of those pesky creditors. Slammed by the president in true populist fashion as “speculators” (otherwise known as people whose money funded Chrysler and who have a legal right to get some of it back), they  may object and seek time-consuming valuations of their claims.

And, yes, it’s not easy to stand up to bullies. The the funds which did so deserve praise. But most of all they deserve a fair hearing on their legal claims.

While it’s true the UAW got an unprecedented sweetheart deal, remember that the 55% is 55% of Chrysler. Struggling for a deal to preside over a hobbled company may not have been the smartest move for the UAW.

If ever we needed a “truth commission” it would be to get to the bottom of the now-dismissed AIPAC case and the wiretapping of Rep. Jane Harman. Something very bad happened here and it would be nice to know why and who was responsible.

“White Man Need Not Apply” says the ever-flip Mark Halperin of the Supreme Court nominees. We have come so far that such a headline would not seem racist nor even obnoxious to the MSM elites. But of course, knowing the “diversity” lobby that surrounds and indeed populates this administration it may be somewhat true.

Jon Stewart says it was “stupid” to call Truman a war criminal because it was a hard call whether to drop the atomic bomb during a war. But Bush on the other hand had to make a hard call during a war so. . . Oh wait. What is Stewart’s point then?

Meanwhile, Bill Kristol cuts through the blather of the week: “Republicans and conservatives have a lot of work to do over the coming months and years. In one way, an additional Democratic senator and a younger liberal Supreme Court justice make the hurdles a little higher. But Arlen Specter and David Souter weren’t going to help the cause of a revitalized conservatism–and their departures provide a chance to begin to clarify the alternative to Obama-ism that conservatives must offer in time for 2010, and especially 2012.”

Even Harry Reid has figured it out: cap-and-trade likely isn’t going anywhere. He only has 39 votes, it seems.

Remember how Obama excoriated the military commissions for trials of terror detainees? That’s so 2008. “But in recent days a variety of officials involved in the deliberations say that after administration lawyers examined many of the cases, the mood shifted toward using military commissions to prosecute some detainees, perhaps including those charged with coordinating the Sept. 11 attacks.’The more they look at it,’ said one official, ‘the more commissions don’t look as bad as they did on Jan. 20.’” Yeah, once you get facts things can look totally different. I wonder if the same will hold true for Guantanamo itself.