Now that the dust-up over Harriet Miers is behind us, we look forward to a much bigger confrontation over the next nominee. It’s clear, after all, that the reason Ms. Miers had to withdraw is that she was unacceptable to the right half of the American polity. No doubt there were some who reckoned she wasn’t “qualified” – in the sense that she wasn’t a constitutionalist and lacked for a certain kind of seasoning in the constitutional wars – but what really knocked the props out was the discontent on the right. While we ourselves would have been happy enough to see the president let Ms. Miers go to an up-or-down vote on the Senate floor, we think – as we said at the outset – that what would best serve the president, the Supreme Court, and the Senate (i.e., the states), is a real fight over constitutional principles.

To get this, President Bush is going to have to choose a nominee who has a clear, open, sustained record on the constitutional principles – a clear opposition to Roe v. Wade for the reasons Chief Justice Rehnquist outlined, for example, or that Justice Scalia has spoken of. We have long suggested that the former solicitor general, Theodore Olson, would be an excellent choice, and we’re an enormous fan of Mr. Olson. Janice Rogers Brown, say, or Alex Kozinski, or Michael McConnell, or Priscilla Owen, or Michael Luttig would also be excellent candidates.

But the nominee himself or herself will be only part of the story. The real question is whether the Senate will conduct the right kind of debate on that nominee. Hot-button issues have captured the attention of senators, especially the “right to privacy” brought to us by Roe. And the Supreme Court will face many individual issues guaranteed to arouse the passions of many and varied interest groups.

Examples are already ripe in the ongoing session, offering a taste of what will face the new associate justice once he or she is seated. Before that justice even dons the black robe, the Supreme Court will hear arguments in

Rumsfeld v. Forum for Academic and Institutional Rights, which will weigh the First Amendment concerns of universities against the military’s interest in recruiting on campuses that benefit from government aid despite university protests over the military’s “don’t ask, don’t tell” policy on homosexuality.

In two abortion cases, lawyers will argue over the legality of efforts to restrict protests in front of abortion clinics. There will be cases touching on how states apply the death penalty, and justices have already heard a case on Oregon’s assisted suicide law. The court will take up campaign speech regulation in a case from Vermont. A flurry of litigation related to executive power in the war on terror will face the court for years, and perhaps decades.

All of these cases will be in the public’s mind and senators are sure to explore a nominee’s opinions as much as possible. But the current docket also provides examples of the many, more mundane, cases that the court considers. For example, justices have already heard arguments, in IBP, Inc. v. Alvarez, on the application of a time-keeping provision in labor laws. That kind of case isn’t glamorous but it is the bulk of the court’s work. And it is important, because a term’s worth of such cases represent opportunities for the court to clarify the ground rules for the justice system. A justice’s career’s worth of such cases represent a chance to change the ground rules entirely.

So as inflamed as passions may be about individual issues, that will be the wrong debate. Rather, the solons need to think long and hard about federalism, the thread running through much of the court’s work. It’s not just a question of states’ rights against Washington, as in the Oregon assisted suicide law, but also a question of the balance of power between the legislative, executive, and judicial. For example, can the judiciary force the executive and legislative branches to offer money to universities without imposing any conditions? That’s the meat of the Rumsfeld case. These questions have lingered since the birth of the Republic, and will continue even after the legality of an abortion clinic protest seems long settled.

We were disappointed with the president’s decision to nominate Harriet Miers because her background was poorly suited for serving as a launching pad for this debate, although we had hoped for such a discussion to emerge in hearings. Now, however, the president has a chance to come out swinging. The borking of Judge Bork led conservatives to believe that a jurist or scholar with a long record was unconfirmable. But the Miers episode has shown that the same hazards await a nominee with hardly any constitutional record. Seen in that light, the president has nothing to lose and everything to gain by nominating someone with an impressive record.