I have been reluctant to comment on Hugh Hewitt’s defense of Miers, yesterday’s post nothwithstanding. (That was meant to be in good humor). He is by all accounts a genuinely nice guy. He’s an optimistic conservative - a seeming contradiction, but then again, I think he supplies a much needed respite to the general pessimism that is natural to our ideology. He has been an open advocate for this blog, and he has been a good ally in our fight against left-wing obstructionism
But I cannot let this post go without comment.
First off, I am sending a bill to Hugh because I used just about a whole ream of paper to print out this post (I still prefer reading things on paper - call me old fashioned).
Anyway, let’s take a closer look.
Call me cynical, but perhaps that’s because no other President has so manifestly gone against the wishes of his own party. More seriously, I also think this is due to the fact that the stakes seem so much higher. The Court’s power has increased dramatically through the years, thus we are even more concerned with reversing the tide of history than we have ever been before.This is nothing like any reaction to a nominee in memory. And if there is any precedent for the president’s own supporters to turn on a SCOTUS nominee in such a fashion, I am unaware of it.
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?
Does this paragraph strike anybody else as being, oh, what’s the word? Elitist>? Yeah, I thought so.
Luckily for us, Hugh can turn on a dime from elitist snob who thinks only lawyers can have fully formed opinions on the matter, to man of the people.
I fear I might be jumping into terrain that would put me at odds with even most of the commenters on this site. But this issue happens to be near and dear to my heart, so forgive me while I go off on something of a long tangent.But American conservatism is deeply suspicious of aristocracy, even among pundits. I have even seen warnings that the GOP is becoming populist! God forbid that, like TR, we actually excite the public’s imagination and approval and keep our majorities intact.
Conservatism and populism are contradictory terms. Hugh mentions Teddy Roosevelt, and while I greatly admire TR, he was no conservative. In fact Roosevelt bordered on demagoguery more often than not - though Woody Wilson would leave him in the dust in that regard.
But digging deeper into American history reveals that our Framers were as far from being populist as one can imagine. They feared the masses. They feared that unfettered democracy could imperil our Nation, and as such they placed numerous checks on democracy within the original Constitution - the electoral college, the Senate, federalism, etc. And even the most fervent democrat among the Founders - Thomas Jefferson - believed in a natural aristocracy based on talent. These were not men prone to putting much stock into populist sentiment.
But let me stop there before we go too far afield. The next quote is the most outrageous of all:
Wow. This is so offensive I’m not sure where to begin. First of all, how has any of the criticism demonstrated an “anti-Evangelical” strain of thought? This sort of thinking exists only in the fervent imagination of Hugh Hewitt.The implicitly anti-evangelical tone of much of the Miers criticism, coupled with the refusal to defend her pro-life views from the assault now underway from the left has raised a very legitimate question for all commentators: Do you really want Roe reversed? Where is that result among your priorities? The suspicion is growing that the GOP elite is really reconciled to abortion on demand but unwilling to announce as much for fear of the political consequences.
Further, as a devout Catholic who has protested outside of abortion clinics, I completely resent having my pro-life credentials questioned. And I think that Ramesh Ponnuru, Steve Dillard, Kathryn Lopez and other pro-life Catholics, as well as other pro-life Miers critics would equally be offended by this completely absurd accusation. In fact, we have been partly motivated by the fact that there is nothing to suggest that Miers would vote to overturn Roe, her so-called pro-life credentials nothwithstanding. For one thing, there is no guarantee that a pro-life individual would take necessarily vote to overturn Roe, and even if one could be assured of that, her background does not suggest that she would offer an intellectually compelling rationale for doing so. As Hugh, lawyer that he is, must surely understand, the Supreme Court is not a super-legislature. SCOTUS opinions are transmitted to lower courts and interpreted there. They are taught in law schools. They are the basis of law review articles. An intellectually inferior opinion based on a person’s individual religious beliefs would be easily refuted by a smart liberal.
But while Hugh chides us for not being truly committed to the pro-life cause, he has the gall to say the following:
So, immediately after giving us the wink wink, nudge nudge she’s an evangelical and she’ll vote to overturn Roe argument, Hugh suddenly shifts course and pretends to be agnostic as to how Miers might vote. And he also thinks the President will be as well.I do not believe that reliability in decision-making is a sound basis for selection of a nominee for the same reason I don’t believe in close questioning of nominees on specific issues likely to come before the SCOTUS: The rule of law depends on the legitimate belief that the justices and judges are not indifferent to argument.
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
Oh really? Let’s flip a few pages back and see what Hugh has to say.
There are a hundred motives for these attacks, but those from my friends in the conservative movement have been motivated primarily though not exclusively by the concern that Miers will get these crucial issues wrong, and yet another opportunity to redirect the SCOTUS towards its intended role will be lost.
Does anyone among the conservatives really not believe that President Bush has a different concern?
But if President Bush doesn’t know how she will vote, why should we place any confidence in his ability to pick someone who will not “get these crucial issues wrong?”
Hugh then engages in some political and electoral analysis. He takes on those of us who believe that forcing a public battle on the issue would be politically beneficial to the GOP.
Well, perhaps we can trust Rove, but considering that most of the insiders have claimed that Andy Card - who played an important role in Souter’s nomination - was in the lead on this pick, that negates the point about Rove. Besides, recent developments have called into question Rove’s political acumen, but that’s for another time.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.
The bulk of the remainder goes into the same territory that Carol and I have been debating these past two days. Hewitt seems to think that a Miers confirmation will be poltiically beneficial and a rejection harmful; I think the opposite. No new ground there. And then there’s this:
He writes this after 12 printed pages. This is, in effect, Hugh Hewitt’s major coup-de-grace on the Miers confirmation. He has obviously committed much energy and passion into this post, and for that I commend him. But exactly how many forceful arguments did Hugh make on behalf of Harriet Miers in this post? ZERO. And now he has the temerity to exclaim that Miers’ opponents have offered no compelling arguments against her confirmation. Well Hugh, it would make our job that much more difficult if you could provide just the slightest bit of evidence that argues for her appointment. I do not believe that the burden of proof is 100% in the Miers camp, but I do think that the weight of evidence should fall chiefly on the administration and his backers. We’re still waiting.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.
Finally, there’s this bit, and I just couldn’t let it go.
They already did that when they voted for Bill Clinton’s nominees.They [Repubican Senators] need to defend the nominee of the president that brought them their majority,
Yes, yes, I know there was that brief period when the Democrats controlled the Senate. But why? Because Jim Jeffords betrayed his party - and did so because he was slighted by the Bush administration. But did Norm Coleman and Saxby Chambliss win their seats because of President Bush, or were there unique circumstances surrounding their victories?
Okay, I’m exhausted. It’s never fun to have an intra-party squabble, and as I’ve said, I respect Hugh. He’s just incredibly wrong on this one issue.
