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10.25.2005

When Conservatives Attack

Hugh Hewitt defends the Miers nomination.

Hewitt doesn't think non-lawyers are competent to judge Harriet Miers' qualifications for SCOTUS:

The majority of commentators who are not lawyers –there are many—are simply not equipped to judge Harriet Miers’ competence. Mark Levin is a big exception. As is Judge Bork. But against these two are arrayed Professor Graglia and Dean Starr. There is disagreement among the ConLaw superstars. Perhaps lesser mortals in this field should wait for the hearings?


You can't have it both ways. If devoting your life to the study of Consitutional law is not a prerequisite for sitting on the highest court in the land, if a Supreme Court Justice ought to be capable of simply reading the plain text of the Constitution and comparing it to the Byzantine coils of modern legislation and rule, then shouldn't non-lawyers be capable of the same?

I and other critics of the Miers nomination wouldn't mind seeing a non-lawyer nominated, provided that non-lawyer was a firm conservative who understood the basic principles upon which this nation and its laws have stood for centuries. The problem isn't Miers' lack of Con Law, it's her lack of firm conservative principles. You simply won't find it in her background, which makes us think it's probably not there at all.

He admits he doesn't know where she stands:

Thus I don’t know and don’t expect to know, and I doubt the president knows, how Miers will vote on the next Roe/Casey case, and I hope she resists as did Chief Justice Roberts repeated attempts to get her on the record as being already decided and thus indifferent to the facts and arguments that will come her way in such a case.


Isn't that the whole point?

Look, you don't have to be a lawyer to realize Roe v. Wade is lousy law. In fact, you pretty much have to be a lawyer to twist this abomination, this usurpation of state and legislative power, into good law. All you have to do is read the bloody decision to see it for the farce it is. If Hewitt doesn't know where Miers will come down in reviewing Roe, that's a problem. Bush thinks he knows. Hewitt doesn't even pretend to.

And I'm sorry, Hugh, but your hopes don't mean a damned thing when we're talking about the codified slaughter of millions of babies in this country. We need somebody with sense and moral principle who will help end this travesty. Excuse me for pointing out that lawyers might not be the best wellspring of either.

He's incoherent on the politics of the nomination:

This is a powerful argument, but it depends ultimately on political judgment, which depends ultimately on facts which most of us do not have access to. And not just facts about whether the Gang of 14 is reliable if a Luttig or a McConnell is sent to the Hill, but also facts about whether crucial votes in crucial states would be affected by two successive white male nominees. This is not an issue easily polled, as it comes down to anticipating rhetoric and races across far-flung states. But I think Karl Rove may be trusted on such matters, even in the absence of clear-cut polling data.

Some anti-Miers writers have argued that it is always wrong to take gender into account when a president nominates for SCOTUS. To which I reply: That’s not what Ronald Reagan thought.

And it isn’t what any serious proponent of conservative majorities in the Congress should believe, or any supporter of continued GOP tenure in the White House post-W. (Imagine Hillary’s stump speech rhetoric on SCOTUS if two, new white males had persuaded three other Justices to strike at Casey?)


Hugh, do the math. The Democrats are the minority party because white males overwhelmingly vote GOP, as do married females. Hillary won't be making that argument in any case---she needs white males to win. Moreover, married women don't like abortion. Let her make that stump speech---it will cost her several percentage points at the ballot box, presuming her opponent is staunchly pro-life.

A minority of Americans want to see abortion on demand, which is what Hillary wants and what Roe and Casey gave us. Putting justices on the bench who will yield to the people that which the Constituion does not expressly reserve for the federal and state governments will only increase GOP majorities.

If you're worried about the "female seat" nonsense, then kindly explain why Priscilla Owens or Janice Rogers Brown would not be better nominees than Harriet Miers. At least you'd have majority Republican support for them, which Miers lacks.

He warns darkly of grave consequences should her nomination fail:

Three SCOTUS nomination processes have resulted in withdrawal/rejections in the modern era: Fortas, Haynesworth/Carswell, and Bork/Ginsburg. Each president involved either abandoned the effort or was obliged to compromise on essential issues, and all three were deeply damaged politically, as would be Bush by a Miers’ withdrawal/defeat. Conservative critics of Miers will not have the luxury of rejecting the responsibility for GOP setbacks, even enormous ones, if they succeed in their campaign against her.

But the results of their success will not be limited to the damage done to Bush. They have to consider the damage done to the GWOT by the loss of GOP majorities in either house of Congress, or of the presidency in 2008. It is simply not credible to reject as unlikely the reality of the consequences of weakening Bush at this moment. There is this pie-in-the-sky idea that, Miers defeated or withdrawn, the prident will nominate a Luttig or a McConnell, and a great battle will be waged and successfully so, and the GOP will go from victory to victory. Perhaps. I mean, it is possible. Really.


Bush nominated her. The political fallout is his problem, truly. Had Bush not consistently ignored his base on issues from domestic spending to free trade to immigration policy to education, he would not be seeing this revolt now. Conservatives bargained that Bush could basically do all the squishy moderate silliness he liked so long as he was strong on national security, tax cuts, and, most importantly, on Supreme Court nominations. The fact that he followed up John Roberts with Harriet Miers leads conservatives to believe they have been betrayed on the judicial picks. Having federal appelate judges be conservative is one thing; having strong conservatives on SCOTUS is everything.

The fact that Pappy gave us Souter is not irrelevant to this calculation. The Bushes have a blind spot when it comes to the Left---they seem to believe that if they're nice to their political enemies, their enemies will reciprocate. What had Dubya gotten for letting Ted Kennedy right the education bill? For making Bill Clinton Disaster Ambassador?

Doesn't the fact that Harry Reid's delighted with Harriet Miers not give you any pause, sir?

And he pins his hopes on GOP senators:

Many of the arguments against Miers are simply bogus, part and parcel of a neoBorking of a fine public servant and accomplished member of the Bar as well as the White House staff in a time of war. The best arguments against Miers are political, and on that basis, can be rejected as unpersuasive after pause and serious consideration, and provided that Miers acquits herself well in her hearings.

Republican senators should immediately begin to be part of the solution to this problem, not abettors of its worsening. They need to defend the nominee of the president that brought them their majority, and to insist that those who are giving them wheelbarrows full of advice take a little in return on the subject of how to deal with disappointments within majority parties.


Republican senators are the problem. They scuttled Clinton's impeachment without even due consideration of the House findings. They have consistently sought to undermine conservatives. The Gang of 14 presumed to form their own Praetorian Guard to usurp the advice and consent powers of the full Senate.

If you're waiting for Arlen Spector or Lindsay Graham to bail the GOP out, you'll be waiting a long time.

The plan is simple: propose a nominee who is eminently qualified and then make those simpering idiots in the Senate look like fools when they question them. The public will see the nominee for who they are, and the senators will feel considerable public pressure to move forward. Just like they did with John Roberts.

Do you really believe Harriet Miers will run rings around the senators? That's what will be required to meet your latter condition of performing well in the hearings, Hugh.

And while you're at it, would you explain how splitting your base with a nominee makes any political sense at all?

Update:

The Blogfather responds.

Let's take his response point-by-point in turn:

Similarly, over at MoltonThought, "Teflon" begins his analysis of the same post with this statement:

Hewitt doesn't think non-lawyers are competent to judge Harriet Miers' qualifications for SCOTUS


In fact, what I wrote, and what he quoted, says:

The majority of commentators who are not lawyers --there are many--are simply not equipped to judge Harriet Miers' competence.


It is impossible to read that line as asserting that I think all non-lawyers aren't competent to judge Miers' qualifications. There are scores of very able non-lawyers who are equipped to do so. Take Terry Eastland, for example, an extraordinary analyst of SCOTUS decisions who is not a lawyer. Take pretty much the entire crowd at NRO.

But many commentators --just read the comments at various boards and blogs-- wouldn't know what a reference to Harlan's dissent in Plessy meant and wouldn't trouble themselves to find out, or even a couple of other major cases and turning points in the history of the SCOTUS. They are making outrageous leaps of logic and engaged in simple invective against a fine pubic servant and impressively accomplished lawyer. They are not in fact equipped to comment on her qualifications because there is a minimum background necessary that they lack.


Hugh, if "The majority of commentators who are not lawyers --there are many--are simply not equipped to judge Harriet Miers' competence" does not mean that you think non-lawyers are somehow incapable of judging her competence for SCOTUS, what does it mean? I could diagram the sentence, but it would appear to me that the root here is "The majority of commentators are simply not equipped to judge Harriet Miers' competence", with some sort of exception in your mind being made for those who happen to be lawyers. Didn't the sentence read just fine without the "who are not lawyers", presuming you don't see passing the Bar as some sort of instant credibility generator when it comes to assessing SCOTUS nominees?

Hugh also posted some questions he asked Jim Geraghty and I to answer. No problem, even for a non-lawyer like myself:

Does George W. Bush deserve any loyalty from his party? From pundits identified with his party? If so, how much and why not more?

No. He is the political head of the government and the Republican party. In the republican form of government, it is elected leaders who owe fealty to the people and to the Constitution, not the people to the leaders. I am a Republican, meaning I tend to vote for Republicans at all levels. I do so because I am a conservative and there is no more conservative party than the GOP. The question is truly what does George W. Bush owe the conservatives who put him in the White House twice? The answer is an unambiguously conservative SCOTUS pick.

Do Harriett Miers' many accomplishments count for nothing?

What accomplishments are these? "First woman to..." is not an accomplishment in my book, it's trivia. If accomplishments and resume mean something, should not Priscilla Owens and Janice Rogers Brown's resumes not make them better picks than Miers? Or shouldn't Larry Tribe be picked, given the amount of influence and accomplishments he's had? Or why not renominate Robert Bork? When it comes to accomplishment, Miers doesn't go to the front of the line.

Does Harriett Miers strike the commentator as a dedicated public servant?

Yes. It also strikes me as irrelevant, as Supreme Court justices don't get graded on attendance, if Stevens is any indicator.

Why not wait for the hearings to at least begin?

Because it is far easier to withdraw a bad nomination and replace it with a good one before hearings get underway. Don't you think the Democrats will rise to Miers' defense given how much Harry Reid seems to like her, and knowing they simply will not get a less conservative pick to replace O'Connor? Don't you think they'll spin Republican questions regarding her fitness as sexist, given the First Lady has made this charge already? It is vital to quash the nomination prior to the hearings to limit any potential political damage from doing so.

How important is it that Roe v. Wade/Casey be reversed?

It is vital. It is the poisonous well of judicial activism, the font from which the oligarchic Court springs.

Which five precedents does the commentator think are in most pressing need of reversal?

Kelo, Roe, Casey, Brown v. Board of Education (yeah, I know I'm old school, but would Roe have happened absence the gobbledygook and psychobabble of Brown?), and for a wild card any precedent using the Commerce Clause as justification for federalizing state powers.

Does the commentator agree with George Will's assertion of Justice Lewis Powell as the "embodiment of mainstream conservative jurisprudence?"

I think Antonin Scalia is and will be regarded historically as the "embodiment of mainstream conservative jurisprudence." I think this will be the case because reading the actual text of the Constitution and legislation has become such a radical concept since the Warren Court.

Is a neo-Borking underway which will discredit the conservative cause's defense of its future nominees against similar, future attacks from the left?

Bork was unfairly maligned and demonized by the Left due to being the most advanced conservative intellect of his generation. Harriet Miers' fitness is being fairly called into question by the Right because Bush refuses to appoint anyone from the conservative legal dream team established since Bork went down. I think accusing conservatives of Borking her is frankly outrageous. I haven't seen any of the venom Ted Kennedy displayed in the "Robert Bork's America" screed apparent on the Right.

What are the political consequences of a defeat of Miers at the hands of a GOP controlled Senate?

Bush will either nominate a candidate more palatable to his base or take the ball and run home by nominating a candidate even less palatable to his base.

The press will continue to hate Bush.

The Democrats will continue to hate Bush.

Republican moderates will continue to gnash their teeth.

In short, the worst case to me is status quo if her nomination fails. If it succeeds, we'll have Souter II on our hands in short order, if Miers' support of affirmative action is any indicator (and I suspect it is).

And here's my question for you, Hugh:

Doesn't it bother you that George W. Bush seems to believe that conservative lawyers and judges need to be snuck onto the Court while Bill Clinton had no compunction about marching ACLU poster child Ruth Bader Ginsburg in through the front door?

2 Comments:

Blogger Pat said...

Lawrence Tribe? I sure hope that was intended as a joke?

And speaking of Lawrences, the SC decision in Lawrence v. Texas is another one that needs to be revisited.

I disagree with you on Miers and the political effect of withdrawing her nomination. But I'd rather see that than this bickering within the party that's going on.

If Hugh has a blind spot, it's his occasional tendency towards credentialism (ironic because the credentialists are leading the anti-Miers charge). However, if you read what he said on the initial point (about whether non-lawyers can comment on Miers credentials), you'll see that you've got him wrong. He said "the majority of commentators who are not lawyers... are not equipped". I think you read it as saying, "The majority of commenters, who are not lawyers,... are not equipped". See the difference? He's not saying that no non-lawyers are equipped, just that the majority of non-lawyers are not equipped.

Sorry I haven't stopped by in awhile, good to see you're still going strong.

3:27 PM  
Blogger Teflon said...

If resume matters most, as Hugh seems to argue at times during his response (see his question regarding her accomplishments), than Tribe ought to be on the Court, right? He's got an excellent resume, certainly better than Miers', and is very influential in his profession, unlike Miers. Since resume isn't the predominant consideration for conservatives, I was merely illustrating the absurdity of this position as a Miers' defense.

I don't think Hugh's off the hook for his non-lawyers comment. I didn't say "Hugh Hewitt says every single non-lawyer is incompetent to assess Miers' qualifications" any more than he said it. If he thinks a majority of non-lawyer commentators are unqualified to say she's a bad pick, doesn't that at least imply he draws a distinction between lawyers and non-lawyers as to their ability to suss out whether or not she's a good pick? Is it not true that he believes a MINORITY of non-lawyer commentators are qualified to his mind to do so? If not, why include the "who are not lawyers" qualifier at all?

It's a silly point in any case---there are lawyers who support and lawyers who do not support her nomination. Judge Bork is eminently qualified by this light, and he's opposed. Kind of eviscerates Hugh's argument, doesn't it?

I don't think it's simple semantics or punctuation---I think Hugh's point is unclear, and inflammatory. This isn't the first time the pro-Miers clique has been so---we've been called elitists, sexists, disloyal, naive, and now (perhaps) incompetent, and that's just by our very civilized folks on the Right.

The name-calling doesn't work when the Left does it, and it won't work now. It's the mark of a weak argument, which is all the pro-Miers folks seem to be able to mount thus far.

When the strongest card you have in the deck is party loyalty, you've got a week hand indeed.

4:18 PM  

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