A comment on another thread asks:

I think the question whether Bush has created an opening to inquiry about his previous communications with Miers is very interesting and I hope Randy Barnett will comment on it.

Because I have not given the issue of executive privilege enough serious thought, I do not have an informed view of this matter—though my instincts tell me that separation-of-powers concerns argue strongly against compelled disclosure to the Senate of conversations between a prospective nominee and the President or his staff.

For me, the more interesting question concerns reports that the White House "cleared" the nomination with outsiders, including James Dobson of Focus on Families, which seems to have been acknowledged by Dobson who has based his support of the nomination, in part, upon information supplied to him by the White House (though his exact sources are not made clear). According to press reports, some senators appear interested in calling him to see what he was told.

It strikes me that information shared with those outside the executive branch are not privileged, and that separation-of-powers concerns are not at as pertinent, if relevant at all. But perhaps I am completely wrong about this.

So my entirely nonrhetorical question is whether Dobson can properly be called to testify and what the appropriate scope of that testimony would be? Should it be limited to what White House officials (as opposed to others) told him about the particular beliefs of the nominee (as opposed to other types of information)? Should it be limited to any assurances he was told were made by the nominee to members of the executive branch? Or would the Senate's demand for such testimony be entirely improper and out of bounds?

Unlike the testimony of the nominee herself, this information cannot compromise the ability of the nominee to decide future cases, unless it reveals that this independence has already been compromised by her private assurances to the White House, which I do not mean to suggest I believe has occurred. To the contrary, I assume it has not.

Let me also be clear that I do not think there was anything at all improper about consulting with outsiders including Mr. Dobson. Arguably the problem with this nomination was too little outside consultation rather than too much, which would explain why the White House seems to have been blind-sided by the intensity of opposition to the nomination. My question only concerns the propriety of the Senate's inquiring about information conveyed by the White House to others, rather than feedback provided outsiders to the White House. What do you think?

(Comments that are not respectful of others in tone as well as substance, as well as comments that are irrelevant to this thread, will be deleted.)

Update: On the ACSBlog, Stanford law professor Robert Weisberg predicts the nomination will be withdrawn due to the difficulty of answering procedural questions such as these.