Ramesh, one quibble. I don’t think Scalia so much voted to curb executive power as he voted – in Hamdi, the case involving the American citizen combatant – in favor of the original meaning of the suspension clause, which (as he recounted it) was to make habeas generally available (i.e., except during invasion or insurrection) to ensure that an overbearing executive could not detain Americans without trial. To the contrary, in the case involving the non-American terrorists who had no entitlement to constitutional protections (Rasul v. Bush), Scalia’s scathing dissent could not have been stronger on executive power to detain alien enemy combatants in wartime.

Given the divergence in Hamdi between Scalia and Thomas (an originalist who supported detention and whose separate opinion was the court’s most sweeping as far as wartime executive power is concerned), is it fair to speculate that, from POTUS’s perspective, the originalist camp might not be as reliable as Miers on war-on-terror issues? At most, only with respect to a very small subset of terrorists: namely, the American ones. Regarding the vast majority of al Qaeda and its affiliates, POTUS has no reason to think originalists are anything other than highly reliable – since it would have been inconceivable to the Framers that the executive branch should be hamstrung in waging war against foreign threats. Indeed, I think the Framers probably thought – and Scalia, Thomas, and the other originalists we wish POTUS had nominated probably think – that the courts have no business entering that area at all.

So unless he is worried about a wave of homegrown al Qaeda members (which is doubtful but not inconceivable), I’d be surprised if Miers’ presumptive reliability in the war on terror would have given her a leg up on the more likely candidates. (In fact, it’s worth noting that Judge Luttig, a candidate much admired by most among us who are dismayed by the Miers nomination, wrote the Fourth Circuit’s decision last month in Padilla — upholding the detention of an American citizen as an enemy combatant.)

Finally, while we’re on this very worthwhile subject, and moving away from trying to read POTUS’s mind, I think the war on terror is yet another area as to which the nation would be better served by an established originalist. Most of the claims that come up in the context of the war seek reasonable-sounding extensions of constitutional concepts – e.g., are there due process limits on interrogation techniques? Or, does due process require that we provide counsel for foreign enemy combatants who the Supremes have allowed to challenge their detention? Or does the Fourth Amendment provide privacy protection against searches of personal records that are in the hands of 3d parties (like email stored with Internet service provider)? And so on. A committed originalist can be relied on to say, “No, the Constitution does not mandate those things. If you want them, write your congressman.” But these are exactly the kinds of “fairness” accommodations that become progressively more appealing to non-originalists (including those who are politically conservative) as they “evolve” over time.