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 lawyersâ€â€there are manyâ€â€are simply not equipped to judge Harriet Miers’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.
Hugh continues:
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.
****
update 3: Pej opposes. And Dale Franks answers Hugh, as well.
What is Hugh afraid of? Doesn’t this example of the conservative movement not blindly following Bush, but voicing their discontent show how strong it is? People are mad because it looks like Bush is more concerned with appointing his friends than with moving the country forward. This battle is too important for mere party politics.
If conservatives are willing to go to the mat now against another conservative nominee with a lack of a track record, wouldn’t conservatives gain credibility when they criticise a lefty president’s nominees with little-to-no track record?
Hmmm.
I’m sorry. I’m an uneducamacated layperson.
Am I supposed to kowtow to Hugh now?
Now?
Can I kowtow now?
Well said. And in case anyone’s interested, here’s a tidy, user-friendly summary of the Plessy case that Hugh thinks is so tough for laymen to understand. Took me thirty seconds to find it; it’ll take you two minutes to read it. How curious that a guy who wrote an entire book championing citizen journalists would dismiss them as too lazy or too ignorant to comment on his own area of expertise.
I guess he needs to come up with a reason to disqualify Professor Brainbridge, Patterico, Reynolds, Ingram and others who fit his resume requirements.
It’s disturbing that a justice might be able to vote in a way Hugh would want but might not articulate the opinion on why. Hugh of all people should know how important the written opinions are, not just the decision themselves. Hell, in some cases the way the opinions are written supercede the importance of the initial vote itself. See right to privacy.
Allah,
Or that they get a majority of their information from other blogs!
Wha? The same Hewitt that gets all of HIS information from blogs and does a four hour talk show daily about what he reads on blogs? I mean, we are supposed to take the web logs of Lileks and Mark Stein seriously until it’s inconvienient to do so? Color me confused.
Hmmm.
If Miers gets confirmed and she turns out as badly as I think she will, Hugh is going to have a lot to answer for.
sw: “showed”
Actually, I will admit I’ve stayed out of the fray for just the reasons Hugh “Rah-Rah-Bush!!” Hewitt states. I am not qualified enough to know if she’s qualified or not. I write code for a living. I is smart, sho’ ‘nuff, just not in law.
However, the last straw with Bush and I has been this fiasco. While I may not know what makes the most qualified candidate, I expect Bush and his team to have a better grasp on their base that they’ve displayed with the Miers nomination.
I’ve seen plenty of legitimate questions brought up, and Hewitt can’t seem to put down his pom-poms long enough to realize there are serious concerns about her.
Well, Hewitt did say “most” non-lawyer, critics, did he not?
That means some are qualified, but more are not. That also means, implicitly, that there’s some difference between the two sets, that makes the smaller one qualified, and the larger one (“most”) not qualified.
And certainly “most” does not mean “all”, does it?
So, yeah, I imagine he did mean the hacks when he said “most”, and that most really doesn’t mean all. I don’t see the kerfuffle in that part, nor the straw-man.
(Unless you’re accusing him of making one in response to your argument, but since he doesn’t claim to be addressing you, and you say the response is indirect, I wouldn’t throw that around unless there’s some evidence he’s specifically talking about your post that I’m unaware of. But I haven’t been following this.)
In other words, “huh?”
And what determines whether one qualifies as a hack or a serious layman commentator?
Answer: whether one agrees with Hugh Hewitt or not.
ed,
I really believe that, as of right now, she will not get confirmed. My thinking has turned 180 on this in the last two weeks. Not being an attorney, just some college educated, independent, logical, reasonable, rational consumer of such information, I’m not sure how much weight you should put on my prediction.
Although I’m not sure how being an attorney would help in that prediction. Now that I think about it, being a mathematician would be more helpful. After all, one simply must be able to count to 49. (I believe that many “no” votes would sink her)
Hugh’s just doing what Hugh does: stepping all over his own dick. Again.
TW: As expected.
Damn. That thing really is alive.
I have read the Federalist Papers and the Constitution. They really aren’t all that hard to understand. It is all the static and noise Hugh and his brethren have contributed down through the years that make the shit difficult. So why is his opinion important, again?
It seems to me that Hugh’s laboring under the misapprehension that this issue represents a fatal disagreement. Perhaps to some elements of the party, but certainly not to all.
I may disagree with President Bush on this issue, but there is no way in hell I will be abandoning him, or the Republicans, in the foreseeable future. The rift between Republicans and Democrats is virtually insurmountable. The Republicans are in good shape. A major part of the current Republican voting constituency right now is composed of strange bedfellows who share a strong accord on certain key issues with which only the Republicans can be trusted. They’re strong.
The Meirs case is a family squabble between those willing to compromise and those holding out for the right thing. It revolves around an issue that’s been on the back burner for 40 years, and it’s about time we cleared the air. This is the moment of greatest strength. This is the time to act. Nothing’s going to be destroyed. So let’s not all get divisive-like, eh?
Yikes, but this seems to be much ado about nothing.
I went back and read the original bit, and it seemed pretty clear to me what Hewitt was saying. He was arguing that many of those claiming Miers was incompetent just didn’t have the chops to decide that; given that experts were disagreeing (and he immediately cited four on opposing sides), her competence should still be considered an open question (at least until the hearings.)
Far from being a straw man, this seems pretty important to me because of the repetition effect. The more people say a thing, the more likely that it will be regarded as true, at least at first glance. Concede a premise like that and the argument’s lost from the start. (It’s part of why people now think Iraq was a mistake.)
Hewitt isn’t attacking people who are making cases against Miers. He’s going after people who want to claim that there can be NO case FOR Miers and, having decided that, sweep aside every substantive argument for her because, y’know, she’s clearly unqualified, Q.E.D.
I wish that were a straw man, Jeff, and I wish it were just inarticulate, illogical hacks who have no pull who were doing it. But it ain’t. It’s pundits and journalists and blog writers and owners (many of whom I respect but will not name) who jump on anything now with both feet, citing it as yet more “evidence” of the premise of which they’ve convinced themselves.
(For what it’s worth, I don’t include you among their number. Heck, you answered his questions, the net effect of which is to acknowledge that there IS a case to be made for Miers and the President. You reject it, which is fine; no problems with disagreement. But his chastisement was in response to folks like Geraghty andn Teflon who simply bypassed his case and went histronic on something else entirely, and what good does that do anybody in this debate?)
Like who? Who listens to these people? Why are they important? Who considers such a “case” against Miers as you describe a case against Miers in the first place? Who is Hugh addressing with his original post? Who is he worried will be swayed by such poor non-arguments?
N.B.: In his post “Keeping Up With The Corner,” Hewitt cites approvingly to Dafydd ab Hugh’s defense of Miers on the Big Lizards blog. Presumably, this means Ab Hugh has the “minimum background necessary” to comment on Miers’s qualifications.
Here’s a short bio of Ab Hugh. What’s missing?
Does anyone else hear an owl in here somewhere?
My problem with HH is that I take it personal when he says that I don’t have a right to have an opinion, because……(insert any reason you want)
My reasoning for being against the Meirs nomination could well be that she is not Estrada. That isn’t the case but does it make my opposition any less real? Others could have a myriad of reasons that they oppose her, some well reasoned and thoughtful and others single issue.
Those supporting her could well have a single reason (GWB said she’s OK) that on it’s merit is not well reasoned and thoughtful. Everyone is entitled to their opinion and to voice it. Just because they are not educated in the Law does not mean that their opinion has no merit.
Like who? Who listens to these people? Why are they important?
I don’t want to come up with a laundry list, in part because there’s been enough going after personalities in all of this. But John Podheretz comes to mind. So does Rod Dreher. As for who would consider such a poor case, I suspect he means some of the weak-kneed Republican Senators who worry more about the political outcry than the merits of any particular case.
Could Hewitt be wrong about who would listen to such a case? Sure he could. He admits he’s making political judgements here, and people can be mistaken in those judgements. I could easily be wrong about the impact of these people I’ve cited just now. But there’s a difference in saying, “I think your judgement is wrong,” and saying, “I think you have no judgement,” and I think Hewitt is saying that people are coming perilously close to the latter, and that’s no good for anyone, not when we’ve got other common goals we need to work together on sometime.
Are we not all sheeple?
TW: plunge
As in where is my cliff?
I think Hugh is battling straw men. I haven’t seen anybody dismiss Miers just because.
I know of no one, not one person, who takes Rod Dreher seriously on most issues.
As for Podhoretz, I think that he has been thoughtful on this.
It seems to me that there is no revelation or argument that will change HH’s opinion on this as he has too much invested in his arguments. You can see it each day as he gets weaker and weaker.
I think Hugh’s the one claiming those opposed to Miers have no judgement. I have yet to see Hugh or any other Miers supporter (or in Hugh’s cute little lexicon “anti-anti-Miers”) explain why she is the best candidate, or offer anything other than “Bush picked her” as their “judgement”.
Emphasis mine. Wow…now that I know my opinion is worthless to HH, I’ll just shut up.
Thanks for listening.
Another curious inconsistency: when the plaudits for John Roberts were rolling in, did Hewitt dismiss any of them on grounds that the person offering them wasn’t a lawyer?
Hmmm.
@ rls
Actually I think she will, but mostly by Democrats and not Republican votes.
1. She’s probably the most non-conservative the Democrats can hope for.
2. Having her confirmed would continue the intr-conservative strife.
3. If Miers did turn out more liberal than conservsative, it would put the nail into the relationship between conservatives and the Republican party.
So my prediction? She gets confirmed by a bare minimium, but with only a few Republican votes.
I wanted this, and I got this.
Don’t know how I can make it any simpler.
Joe, I also not aware of anyone who’s claiming that Miers is the best candidate–Hewitt himself says his choice would have been a Luttig or McConnell, if memory serves. But what Hewitt will claim is that (a) the “best” candidate argument doesn’t mean much now that the nomination’s been made, (b) even if we were to start talking about “best”, we’d need to consider political realities that the President must deal with that legal conservatives would likely dismiss, and (c) the argument is now about whether Miers is a “good” candidate, not the “best”, and he would claim that she is a good candidate and cite certain criteria (including historical ones).
And if you really haven’t seen anyone who suggests anything more than “trust the president”, read Beldar. What he does is go through several of the criteria that people would otherwise dismiss and argue that these really ARE legitimate qualifications (like Texas lottery chief, head of law firm, someone who oversaw a merger, etc.) Must you agree with him? Of course not. But if you visit, you’ll see someone making the case.
And that will close my participation in this stuff for a while since I actually got assigned a real project again, so goofing off has to be cut down. Cheers.
This “Miers Caper” has told me volumes about the Republican party and my chosen conservative blogosphere. I’ll limit myself to two points.
First, the Republican party and the ‘sphere have the breadth to argue for and against the appointment of a devoted female public servant on the basis of her qualifications, rather than her gender. It’s been heated at times, but the commentary has remained credible.
Second, the opinions of conservative pundits, bloggers, retired ex-SCOTUS nominees, media personalities, and blog commenters simply don’t matter to this process. Nothing you guys – from Michelle Malkin, to Ed Morrisey, the NRO, or Johah Goldberg – have written has influenced this President’s choice.
He made his choice, now can’t we wait until the hearings “at least begin?”
-Steve
Think it’s likely to influence his next choice, should there be one?
<blockquote>(b) even if we were to start talking about “bestâ€Â, we’d need to consider political realities that the President must deal with that legal conservatives would likely dismiss</blockqoute>The preemptive surrender / “pragmatism” defense.
Jeff,
The thing that is jumping out at me with this particular attitude of Hugh’s is the whole “don’t question my patriotism” meme that has been tossed around by the Left. Up until now, I’ve pretty much dismissed it as the rantings of the Lunatics running the asylum. Certainly, most people who’ve supported Bush’s choices and actions, yourself included, have been arguing on the merits, and not making ad hominem attacks on “patriotism”, or any such nonsense.
However, I’m beginning to wonder if, perhaps, we’ve been dismissing this complaint out of hand, when, in fact, certain influential members of the Right may have been slinging that very attack. Hugh’s current argument certainly falls very close to that, in and of itself. It makes me uncomfortable, to say the least. Doesn’t mean I’m going to grant immediate merit to any wingnut who cries wolf, but there may be some legitimacy to a few of the complaints after all.
You mean you want to confine our choice now to: do we want tartar sauce on our shit sandwich, or will we have it plain? My choice is I don’t want the damn thing at all.
I’ve read Beldar, and while he makes good points, our (Jeff’s, and mine) argument here isn’t that Miers is unqualified, or that she’s a woman, so stop raising these strawmen. The criticism is that she is 1) Not the best candidate, 2) Not clearly an originalist, and 3) Not likely to provoke the constitutionalist showdown with Dems that we conservatives want. Why won’t the anti-anti-Miers crowd address these points?
That one sentence sums it up for me. I know she’s for the clearly unconstitutional idea of affirmative action. Therefore she’s nott a strict constructionist. Nothing she can say will allay my doubts about her, knowing her views on this subject. I don’t think she’s a Souter; she’s more like an O’Conner or a Stephens. Frankly, I’m not willing to support a nominee who will rule America with her ‘opinions’. We’ve lived with it for 30 years. It’s time for a change. Bush has the chance, if Miers is withdrawn. Hugh is a great man, but he’s wrong about this nomination.
More effort should be spent in how to withdraw her and save face than to confirm her.
There were 22 Democrats that did not vote for Roberts. I don’t see how they could now vote for Meirs, plainly not as qualified as Roberts, and maintain any credibility. They might be able to get away with it if this nomination had come a year or so later, but with the Roberts vote fresh, I just can’t see how they could cast a vote for Meirs.
Hmmm.
@ slarrow
Didn’t President Bush state repeatedly that Miers is the *best* candidate?
Hmmm.
Who would hold their feet to the fire? Conservatives? Would anyone else?
“Neo-Borking”?
Jesus. That’s the sort of cynically motivated brutal rape of language I generally expect from the left (which gave us such amusing terms as, off the top of my head, “Market Stalinism” to describe Thatcherite Britain, and “Libertarian Socialism” to describe Noam Chomsky’s avowed ideological leanings). But when the man’s also happy to engage in the left’s favorite tactic of unsubstantiated (and unsubstantiatable) accusations of sexism, racism, –ism to shut up its opposition, I suppose I shouldn’t be surprised.
HH’s main theme in all this is a familiar one:
You don’t have to fall in love. You just have to fall in line.
Turing = lower, as in Hard to imagine an unnecessary test of conservative faith going any lower than this fracas.
As Joe said above, after the Tancredo incident, this isn’t too suprising.
TW: we children who haven’t had our thinking shaped by law school are unqualified to have an intelligent opinion in this matter. Unless we agree, that is.
The elitism that has wafted from both sides of this issue has been very illuminating to this “po’ black ghetto chile.”
It will be interesting to see the upcoming Arbitron books for this quarter, and to see whether or not Hewitt has eternally pissed off a big chunk of his audience or not.
Hewitt has the nasty habit of verbally painting himself into corners – and when that is made known to him he tends to attack either A) the intelligence; or B) the patriotism of his antagonists – whomever they may be. When in doubt, he will scream about the fact that “I teach ConLaw – do YOU?!?”
Accusing Bork of attempting to Bork someone is nothing short of classic Hewitt – and the main reason why right now Michael Savage sounds more reasonable on current issues than Hewitt does.
Mr. Hewitt seems to excuse the very reason Republicans play defense even when they control the ball.
Very well done take down Jeff.
I used to think a lot of Hewitt, although he clearly is more representative of the “religious right” than plain old conservatives. Unfortunately he is in danger of reducing himself to Andrew Sullivan status with his bizzarro posts on Miers.
Here’s hoping he pulls himself back from the edge.
TW: level – as in level-headed, and on this issue, Hewitt is not.
I think Hugh is playing to the petulant here. His main point seems to be that we can’t afford to alienate 3% of evangelical voters because they might stay home next election cycle. Being one of those voters myself, I think he’s very wrong.
Some evangelical voters are not in support of Miers at all, and do not wish to see her confirmed. Hugh is making assumptions regarding evangelical voters – that we are more interested in identity politics than good candidates, and that’s simply not true.
Actually, many of my friends are evangelicals and they don’t support Miers either. So, to be honest, I have no idea who Hugh thinks is in support of this nomination.
Certainly the “best” choice is not possible, as agreement could not be reached. I think this discussion is a lot of pundits positioning to be able to claim credit, so as to infer importance in the process, and garner attention to their writings. Get a clue! Bloggers do not have any more influence than Helen Thomas in Reagan’s press pool. And that’s not a bad thing. IMO the President didn’t choose Luttig or other leading conservative jurists because the majority in the Senate are a bunch of weenies, and they wouldn’t fight (and I’m not sure they support real conservative policy) to win. See the budget and the Coburn Amendment for examples. If you want to influence the decision making, support candidates that will go to the mattresses for conservative principles, not candidates that prostitute themselves to yours or other special interests.
That’s what we thought we were getting with the president. Guess that didn’t work out.
We don’t know what the Prez would have done with a solid Senate majority. We should assume that he proffered the best candidate he thought would get past the gang of 14 and the weak kneed Republicans. If you want the QB to have more success throwing the long ball, hire a better blocking front line. It doesn’t matter how good his receivers are if he gets sacked by his own guys before he throws the ball. Perhaps he should have had more faith in the ability of bloggers to get Senators to kowtow to the conservative line, but I think he bet correctly.
Football version:
I wanted this, and I got this
I gotta million of ‘em.
Ouch.
Every time a liberal says this about the war in Iraq you guys hand his ass to him about “patriotism.” What gives?
My point is that I accept as possible that the President didn’t think the weenies in the Senate would support a more conservative and more visibly tracked jurist, not that he, given his ‘druthers, wouldn’t have chosen someone else. The Senate Republicans are like the Black Sox, willing to throw the SCOTUS for a few quid pro quo votes on pork.
Much as Limbaugh’s ESPN comments weren’t about McNabb, but rather about the press, my comments weren’t about the bloggers but rather about the weak kneed Senators.
Pundit disloyalty (such that it exists) is unimportant. Given that the President throws red meat at the Judiciary Committee, in the form of Luttig or Brown, get ready for the real fight.
Can the conservative blogging community provide enough cover and support to help the conservatives on the SJC weather the battle? Are you willing to spend time and money getting these folks re-elected after they get trashed in the MSM? Senators trade votes to get pork to satisfy local and monied interests, so that they can be re-elected. We have to replace that money with whatever it takes to get them re-elected if we want to re-align the Senator’s interests with our own. In this case, the next SCOTUS nominee, the Senators will be pressured to go moderate. A visibly Pro-Life candidate will be cause our Senators to be threatened not only by other Senators but by the monied interests. We have to be willing to give up pork and replace the big money contributors in order for our Senators to support a conservative nominee.
You haven’t been paying attention. The conservatives who opposed Miers aren’t calling for a visibly Pro-Life candidate. In fact, they’ve eschewed that as an indicator.
Far be it from me to debate a guy who buys his bits by the gigabyte. I’m not saying that GWB would reverse his position against a litmus test. I’m saying that the nominee who meets the other criteria; track record of conservative opinions and writings, scant evidence of activist or liberal opinions, openly originalist; will be a pro-life nominee. Else s/he would have already been seduced by the dark side, because it’s so much easier to be that way. Maybe I’m wrong, and there is a slate of non-obviously originalist pro-lifers that are also Scalia clones, but I doubt it. I guess it boils down to, in my opinion, conservative = originalist = no penumbric rights = no implied right to privacy = no right to abortion = no intrusion into the states rights arena that allowed for the Roe (and similar) decisions.