Hugh responds indirectly to the criticisms leveled at him in my previous post:
It is impossible to read that line [ “The majority of commentators who are not lawyersÃ¢â‚¬â€there are manyÃ¢â‚¬â€are simply not equipped to judge Harriet MiersÃ¢â‚¬â„¢s competence"] 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.
Ah. So you see, Hugh wasn’t talking about the able critics of Miers. They don’t concern him. It’s the inarticulate, illogical hacks who are attacking Miers from a position of pure emotionalism—the kind of folks nobody listens to anyway—who are the object of Hewitt’s dissatisfaction.
Uh huh. No straw man, there.
The responses to arguments from the anti-anti-Miers crowd is to dodge the hard questions, which for the sake of brevity, I will list here:
Does George W. Bush deserve any loyalty from his party? From pundits identified with his party? If so, how much and why not more?
Glad you asked, Hugh. Of course the President deserves our loyalty. Politically. And he got it—which accounts for his reelection. Similarly, many Miers critics have noted that, out of respect for the process, they will support Miers should she make it through the Senate hearings. But support is not the same as blind obedience. And discussion and criticism is not the same as disloyalty. Not all of those the President represents are happy with his choice. Should he not hear those voices? If not, how will he know what the people he represents actually want?
Do Harriett Miers’ many accomplishments count for nothing?
Of course they count for something. But should they count for everything? And what are the accomplishments that make her particularly well-suited to be a Supreme Court Justice—one of the most exclusive positions one can achieve in this country?
Does Harriett Miers strike the commentator as a dedicated public servant?
Sure. As are many meter maids. And city councilmen. And bomb-sniffing dogs. Should we appoint a German Shepherd to the court?
Why not wait for the hearings to at least begin?
Because many of us support the Ginsberg rule, and we don’t really trust Senate members to be able to get much of substance out of Miers. Besides, many of us simply don’t want a steath candidate, knowing full well that a misstep could change the direction of the country for years to come (if not in perpetuity) and undo decades of work moving the country rightward, to the point where most Americans are now, as a rule, averse to the kind of judicial activism they attribute to the idea of a “living Constitution.” The real question should be, why do Republicans, who control the House and Senate in addition to the White House, fear the fight over the very nature of the judiciary?
How important is it that Roe v. Wade/Casey be reversed?
It’s the means, not the end, that concerns me. There are plenty of legal justifications for not overturning Roe. What is important is the legal thinking that leads up to the decision.
Which five precedents does the commentator think are in most pressing need of reversal?
See previous, as a qualifier. Though, from a purely academic standpoint, I’d say, of relatively recent vintage, Kelo, Raich, Bolinger, Simmons, and McConnell are all pretty significant—expanding eminent domain powers, expanding the commerce clause, declaring racial preferences Constitutional, watering down the meaning of “dimished capacity” by expanding it to include the normal teenage brain, and the diminution of the First Amendment.
Does the commentator agree with George Will’s assertion of Justice Lewis Powell as the “embodiment of mainstream conservative jurisprudence?”
No. Nor do I believe that Potter Stewart is—neither of which opinions has much bearing on arguments made either for or against the Miers nomination.
Is a neo-Borking underway which will discredit the conservative cause’s defense of its future nominees against similar, future attacks from the left?
Well, given that it’s your assertion, you tell us. But if the left wants to attack conservative nominees for having no track record and no obvious judicial philosophy, clearly many conservatives will support them. How this discredits the conservative cause, when in fact it appears to be indicative of the conservative cause—whose goal it is to place qualified conservatives with a recognizable judicial philosophy on the bench—is beyond me.
What are the political consequences of a defeat of Miers at the hands of a GOP controlled Senate?
Bush would nominate another candidate. Then we’d go through the process again—only this time, presumably Bush and the Gang of 14 will know that we are not afraid to fight for a qualified, openly conservative judicial nominee, and to make a case for him or her, or to make the larger case to the American people about the importance of legal conservatism to the judiciary as a whole. The defeat of Miguel Estrada was outrageous. We need to make the case strongly and insistently that we will not let such a thing happen again without putting up a fierce fight.
If the left wants to filibuster, let them. Conservatives have a deep bench. Let’s play some CHICKEN!
update: These answers were brief and extemporaneous. I attribute any shortcomings in logic or temperament to a lack of legal training.
update 2: Patterico answers Hugh’s questions, too.