Last evening I noted that Hugh Hewitt, in his rebuttal to George Will’s critique of the Miers nomination, raised several serious questions aimed at those of us who’ve expressed particular concern over the nominee’s purported political positions on to affirmative action, quotas, and proportional representation—positions that, in my case, I’ve been arguing are a better political “litmus test” for discerning her likely judicial philosophy (in lieu of a judicial track record) than her personal politics regarding Roe (which could be upheld legally on any number of perfectly reasonable grounds). Writes Hugh:
[…] I see many on the web are exercised about Harriet Miers’ support for affirmative action in the private setting of support for resolutions of the Texas Bar urging quotas in hiring at private law firms. It is not a policy with which I would agree either, but it also not a matter of constitutional law, unless under Brentwood the action of the Texas Bar in urging private firms to set strict goals has converted into a state action. Don’t know what Brentwood is? Or the state action doctrine? Not many people do. But those that don’t ought not to be confusing ConLaw with the private decisions of private firms while agruing that this policy makes Miers suspect on Bollinger. Now, if she supported a soft line on the Bollinger cases, that would be a legitimate area of concern, but not the Texas Bar resolutions […]
This morning, Jonah Goldberg responds:
Piffle. If reports are to be believed Miers argued—along with her old bar association, pro-affirmative action chum and pal, Alberto Gonzales—that the White House shouldn’t oppose racial quotas aggressively. Instead the White House punted by arguing a narrow aspect of the law and lending little to no support to the anti-quota side. In other words, she did in fact take a soft line on the Bollinger case, which Hewitt admits would be a legitimate reason for concern.
(Or at least that is the charge that many with first hand experience have made. And this White House, as far as I know, has not attempted even once to dispute it.)
So let us concede that her views in this area constitute a legitimate concern. In this context, i.e. we are already legitimately concerned, we find out that Miers was an aggressive supporter of quotas on as the head of a state-affiliated agency (the Texas Bar). We find out she used all of the language, set all of the policies and took all of the positions consistent with a conventional establishmentarian, go-along, get-along, country club Republican on racial quotas and affirmative action. But, alas, if we can’t debate the Brentwood decision with Hugh adequately we have no claim to concern about this at all. Why? Because such a policy has nothing to do with “ConLaw.” This strikes me as piffle-squared. How a reasonable person could read the Washington Post story yesterday and then with a straight face say it’s not a disturbing indication of how she’d vote is beyond me. If Miers had been found out to have been a virulent racist in the early nineties, do you think the argument that those views were irrelevant to how she’d vote would hold water?
I might add that as we don’t know jack about what Miers’ view on ConLaw is, we have to go with what we know. And what we know is that Miers agrees with the logic of quotas and affirmative action as a moral good. That’s troubling enough, even if you buy Hewitt’s magical high wall between Miers’ constitutional views and her personal views. But let’s assume Hewitt is right and this has absolutely nothing, one way or the other, to do with constitutional law. Fine. But as a simple matter of morality, we know that Miers is convinced of the pro-quota side.
So now Hugh is telling us not to worry about her private political views, they are meaningless (even as she pushed the White House to go soft on Bollinger). Meanwhile, Miers’ supporters have been arguing for two weeks that Miers is privately opposed to abortion and that should be good enough indication about how she’d vote on Roe. So which is it? Why should we believe Hewitt that Miers will keep her private views to herself (even though she hasn’t in the past) on race, but she’ll take her private views on abortion to the bank?
This last is an important point, and one that I continue to highlight: given Miers’ lack of a judicial track record—and given the lack of substantive material the White House has given us to go on other than its word (and the word of Miers and her supporters) that Ms Miers “won’t legislate from the bench” (to be fair, some have been more specific in their assertion of her originalist bona fides)—those of us examining the nomination would be derelict if we didn’t look to Ms Miers political temperament as a way to gauge her likely judicial philosophy.
Rumors persist (and have thus far not been either corrected or denied) that, as White House counsel, Miers joined Alberto Gonzales in persuading the Bush Administration to take a narrow approach to Bollinger; and many Republicans—both then and now—argued that such a stance, which proved terribly disappointing to conservatives who find race-based affirmative action unconstitutional on its face, was necessary to ensure Bush’s reelection. In short, the White House position was, from Bush’s standpoint, a decision steeped in pragmatism; from Miers’ standpoint, however, it was a decision that aligned with her own purported political position—or, as Jonah Goldberg puts it, that “agrees with the logic of quotas and affirmative action as a moral good.”
Why should this not give conservatives pause? What is it in Miers’ past that should lead us to believe that she will push back against her political impulses regarding affirmative action, particularly when, as counsel to the President, she could not bring herself to find it problematic enough from a legal standpoint to advise a conservative President to take a principled and coherent ideological stand?
(h/t Chateau d’If, who nicely rebuts some of Hewitt’s other points here. See also, Professor Bainbridge, Ann Althouse, Below the Beltway, Patterico, and Glenn Reynolds, writing in the WSJ)
****
update: See also, Andrew McCarthy, Stanley Kurtz, who notes (correctly):
Hugh’s argument is a claim that only a highly educated legal elite is qualified to judge Miers on that issue. Without knowledge of Brentwood or the state action doctrine, Hugh says, you can’t draw conclusions from her passionate support for quotas in a private case. That’s just not credible, but it does show that Hewitt is willing to turn to “elitist†arguments when pressed.
Exactly so. But more importantly, how are we to believe Miers would understand the distinction? Or is a background in Constitutional law somehow now important again for a Supreme Court nominee…?
Meanwhile, the sexism charge continues to baffle.
****
update 2: Confirm Them plays devil’s advocate; rebutted nicely in the comments, particularly here, here, here, and here.
And here a commenter fleshes out the case for pragmatism. For his trouble, he is engaged immediately by a legal conservative upset with political triangulation at the expense of judicial principle.
This exchange acts precisely as a performative of the dynamic I’ve been describing in the Right’s battle over Miers.
****
See also, The Trigger (via Allah)
****
update 3: All Things Beautiful (who is pro-Miers, and makes the case for Miers as an originalist) has a nice roundup. And, reacting to this post from Paul at Powerline, Patterico has more on the affirmative action question, citing a New York Times story from this morning:
When Harriet E. Miers, President Bush’s Supreme Court nominee, was moving toward the presidency of the State Bar of Texas in 1992, she enthusiastically supported an effort by the group to guarantee positions on its board of directors to female and minority lawyers, her two immediate predecessors said on Saturday.
[…] “She was all for minority participation on the board,” said James Parsons III, the group’s president from 1990 to 1991, who initiated the policy. “When she became president, and she was our first woman president, she made a statement that the bar association should always reflect the community and large diversity of the population of the state.”
Among the first lawyers to win appointment to the board under the program were Alberto R. Gonzales, the current attorney general, who is Hispanic, and Sheila Jackson-Lee, a member of the House of Representatives since 1994, who is black.
Bob Dunn, who followed Mr. Parsons as president from 1991 to 1992, said financial problems within the association forced him and Ms. Miers to cut the number of board members when they served. “But at the same time, she continued the expansion of the role of minorities,” Mr. Dunn said. “She did not want to go back from what we were doing.”
Again, this does not prove Miers would, as a Supreme Court Justice, rule in favor of race-based affirmative action programs; but it does suggest that she doesn’t find anything at least ostensibly unconstitutional about them, either. And more importantly, this is not some “unsubstantiated, anonymously sourced rumor.”
So you need to be a legal elite to judge a judge, but not to be a judge.
If I weren’t so used to having flashbacks this spinning would be alot more disconcerting.
By choosing to criticize Hewitt (and Miers), you reveal yourself to be a card-carrying member of the BWAE, Jeff. And you know what that means. NO PIE.
Worth noting: Hewitt knocks Will for calling Lewis Powell, who voted with the majority in Roe, “the embodiment of mainstream conservative jurisprudence.” Meanwhile, last week Hugh was touting Miers as the second coming of Potter Stewart.
Guess how Stewart voted in Roe. Right.
You are confusing ends and means here.
Miers apparently believed – quite possibly still believes (we’ll presumably find out, if the geniuses who ask the questions at her hearing think of asking her) – that it is worthwhile to have integrated participation in the practice of law. Is anyone really against that?
That does not mean, however, that she necessarily would approve of state action to accomplish that end, or that the goal should be reached other than by private individuals and law firms considering whether their own interests are served by this kind of diversification – Texans, in general, could benefit from it, certainly, as could we all – or that any setting of quotas, or even the vaguest goals, by any outside authority would be acceptable.
Let’s hope someone asks her.
”Integrated participation” based on color? Very few people are against that, I suspect. But the best way of achieving it is a matter of considerable dispute.
Not “necessarily,” no. But how likely are the possibilities? And of course, the Texas State Bar is a branch of government.
If the “diversification” involves passing over one candidate for associate or partner in favor of another, because one has the wrong race and the other has the right, I am really against it.
Spamword: that’s my answer
This blog is only eight days old, and already it’s showing lots of promise.
I’d really like to know what it would take for Hewitt to be critical of a hypothetical Bush SCOTUS nominee. There’s such a huge disparity between her qualifications and those of the people on the short list that I’ve just been amazed with the way he basically attacks anyone with criticisms as either a freakin’ boob or an unreasonable bastard.
If she didn’t have a law degree could Hewitt allow then that critics had a small point about her lack of qualifications? Could he credit a critic of the apparent cronyism of the choice with a teeny, tiny point if she were a Bush relative rather than a close friend? How under qualified would a Bush nominee have to be before Hewitt could bring himself be critical of the choice? Is he just spinning on this or is he so full of Kool-aid that he can seriously compare her background to those of every person on the court and every person on the short lists and not see why someone might be critical of the choice?
I’m really curious about this and I doubt Hewitt would answer me. I can see the argument that while she’s not ideal the president’s discretion should be really wide, but I honestly can’t get a handle on Hewitt’s thought process on this.
I’ll add a link in an update.
Still, because this guy doesn’t have me on his blogroll, I remain a bit skeptical of his judgment on the macro level, Allah.
It’s a strike against him, JG, but based on that post, I’d say his judgment overall is pretty sound.
Re: this —
So would I. Lately I’ve been wondering what Hewitt would do if Bush called a press conference and announced the immediate withdrawal of all U.S. forces from Iraq. I have to believe he’d defend the decision. Because, by Hugh’s logic, a Republican president who cuts and runs is still better on balance than Hillary.
The only circumstance I can imagine that would lead Hewitt to abandon Bush is if Bush switched his party affiliation. Even if he retained the same policies. It’s all about parties, not principles.
Thanks, Allah. I wanted to double check with someone better informed before I wrote the guy off as a serious person. From my independent perspective I just can’t picture that level of partisanship. Hell, even Rush and Hannity criticize Bush on spending, the Medicaid package and the like. I didn’t realize Hewitt was that far out there.
The thing that discourages the hell out of me is people assuming the Senate gives a shit. I mean if they cared about their jobs they wouldn’t have allowed the judiciary to usurp their powers this way in the first place. I think the only way the Senate is ever going to wake up is if we move to abolish it. WTF do we need it for if the judiciary can legislate?
tw: seen, as in the enemy, I have
Heh. The problem is that to be rid of them we’d need to get them to propose and pass an constitutional amendment abolishing themselves. Since we can’t even get a term limit amendment or a truth in legislation amendment to get anything close to traction I think we’re screwed.
Maybe we can use Kelo to appropriate the Capitol for commercial development, it would be nice for it to generate revenue for a change you must admit. If Congress had no where to meet maybe they would just give up and go home.
LET A BOY HAVE HIS DREAMS!
“Still, because this guy doesn’t have me on his blogroll, I remain a bit skeptical of his judgment on the macro level, Allah.”
Fixed!
Meanwhile, Hewitt continues to lose fans.
Allah,
Do you bother reading those before you posted the links?
The one by Blanton at Red State is quite offensive. I have been on the web for only 10 minutes this morning and have already run into ‘goosestepping’, ‘traitorious’, ‘bootlicking’, and other wonderfly descriptive words used by both sides of the Miers drama.
Some on both sides need to come off the ledge.
That being said…..hehe…
Ed,
Heres that link to the Constitution Party you were looking for:
John Birch Redux
Hmmmm.
@ Jeff Goldstein
“Not “necessarily,†no. But how likely are the possibilities? And of course, the Texas State Bar is a branch of government.”
I am rather curious as to how Hugh Hewitt, a Professor of Con Law, got that wrong.
Hmmm.
The things I’ve learned from this Miers debate:
1. I am definitely never voting for anyone related to President Bush. Two Bushes have been two too many already. If another Bush wants into the White House, call me in a couple centuries.
2. I now know that the minimum requirements for a Supreme Court justice is set so a zombie cannot be comfirmed, but anybody else who has a heartbeat and respiration is definitely eligible.
So that’s a good thing as having a zombie on the Supreme Court could be trouble, with all that eating-of-human-brains stuff. So as far as having a heartbeat and respiration, we’ve got a candidate that definitely fits that description.
And if I’ve never written this before, let me write it now. We’re DAMN lucky Bush wasn’t a longtime friend of any zombies. Good thing Bush was raised in Texas and not Lousiana.
…
Anybody else want to add to this list?