Baseball Crank
Covering the Front and Back Pages of the Newspaper
October 26, 2005
LAW: 22 Questions for Hugh Hewitt & Co.

Hugh Hewitt has propounded 9 questions for Miers critics on the Right:

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

Do Harriett Miers' many accomplishments count for nothing?

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

Why not wait for the hearings to at least begin?

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

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

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

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

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

I was going to post a detailed response, but Patterico, Dale Franks and Jeff Goldstein have said much of what needs to be said in responding to Hewitt. I may update this post later with my own answers, if I get the time.

But here are some questions - 22 of them - for Hewitt and other Miers defenders on the Right (including Beldar, if he sees fit, although these don't mainly go to Beldar's arguments, plus Beldar is doubtless busy mourning the Astros at the moment). Thanks to Dale Franks for his input on the questions. They don't capture all of the hard questions, but a lot of them for those of us who consider ourselves conservatives and, in general, loyal Republicans, and I would honestly like to hear how Hewitt and other Miers defenders (including those still in the "wait and see" camp) deal with these:

The Limits, if any, of Loyalty to Party Leaders

1. Some conservative/Republican pundits/bloggers honestly believe Harriet Miers would be, for various reasons, a bad Supreme Court Justice. Do you believe those pundits/bloggers should (a) state their concerns publicly, (b) keep their mouths shut, or (c) support her anyway?

2. What issues are important enough issues to justify taking an active stand against a Republican president or Republican congressional leaders? Are there any such issues, other than the war?

3. Is the GOP worse off because John Tower's nomination for Defense Secretary failed and he had to be replaced with Dick Cheney?

4. Is the GOP worse off because Republicans and conservatives - pundits, bloggers, and elected officials alike - participated in forcing Trent Lott to step down as GOP Senate Majority Leader?

5. Is the GOP worse off because Ronald Reagan ran a primary campaign in 1976 against a sitting Republican president who then lost the general election by two points?

The Nominee's Qualifications and What Will Be Learned at the Hearings

6. Does it matter if a Supreme Court Justice does not write clear and logical opinions?

7. Does it matter if a Supreme Court Justice does not know constitutional law well enough to avoid writing opinions in one case that will have unexpected bad consequences in other cases?

8. Even limiting the search to lawyers in private practice who have not been judges, and judging by the standards of legal reasoning and persuasive argument, is there any reason to believe that Harriet Miers was in the top 50 or 100 best lawyers in this country? If not, does it matter that she is not?

9. Please cite examples of Harriet Miers' writings that demonstrate an ability to write and reason clearly. If no examples are available, please explain why we should believe that such examples will be forthcoming before her nomination will be put to a vote.

10. What concrete, relevant information do you believe we will gain at the hearings regarding Harriet Miers' qualifications and philosophy that we do not already have?

Making the Left's Arguments

11. Do you believe that continuing to tout Miers' gender will, if she is voted down or withdrawn, make it impossible for President Bush to consider a male nominee?

12. Do you believe that continuing to tout Miers' religion will, if she is voted down or withdrawn, make it impossible for President Bush to consider a non-evangelical Christian nominee?

13. Do you believe that it is important to have an evangelical Christian among the Justices? If so, why is this different from other religious tests, and is it proper for nominees to be questioned about their religion?

14. Are Harriet Miers' personal beliefs on abortion relevant to your support for her? If so, is it proper for nominees to be questioned about their personal beliefs on abortion?

15. Of the three, which should the #1 goal in Supreme Court battles: (a) getting Justices who produce good results, (b) getting Justices who follow good legal reasoning, or (c) getting Justices whose confirmation provides political benefits to the party?

Back At You

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

17. Which five precedents do you think are in most pressing need of reversal?

Role Models

18. Would you be satisfied with another Justice just like Lewis Powell? Potter Stewart? Warren Burger? Anthony Kennedy? Sandra Day O'Connor?

Consequences

19. Do you believe that a significant portion of the GOP base is unhappy with the Miers nomination?

20. If not, do you believe that the pundits/bloggers who are openly critical of the nomination - including Rush Limbaugh, National Review, The Wall Street Journal, Bill Kristol, Laura Ingraham, Charles Krauthammer and George Will - are important parts of the GOP's ability to win public issue debates and elections?

21. Do you believe that the GOP is currently heading for a successful 2006 election cycle if it keeps doing the things it has done in 2005, or is a change of course needed to motivate the base and persuade swing voters?

22. Do you believe that a defeat for Miers would make it less likely that candidates with no paper trail will be nominated in the future, just as Bork's defeat make it less likely that candidates with extensive paper trails and well-known public positions would be nominated? Would that be a good thing?

UPDATE: Xrlq offers answers.

Posted by Baseball Crank at 6:40 PM | Law 2005 | Comments (5) | TrackBack (5)
Comments

Great set of questions. Glad to see that you're setting Hugh Hewitt straight. His hackery for this embarrassment is... well, embarrassing.

Posted by: Sydney Carton at October 27, 2005 12:07 AM

I'm not going to tackle all your questions, interesting though they are--that would make quite a tome! But I'm going to attempt a brief response to two of your questions.

As far as Ms. Miers' writing ability goes, I tackled that issue in this post of mine. In it, I discuss Ms. Miers's writing in terms of substance, style, and clarity, and compare her answer on the "jucicial activism" question (the essay question) of the Senate Committee questionnaire to that of Mr. Roberts.

As far as your question #7 goes, I think it's nearly impossible even for the best constitutional scholar to know the consequences of decisions. The law of unintended consequences takes over, I'm afraid. For example, the very intelligent and knowledgeable Supreme Court justices overwhelmingly thought that allowing the Paula Jones lawsuit to go forward against a sitting President would not distract him from his office. We all know how prescient that turned out to be.

Supreme Court cases are very complex these days, and even the greatest constitutional scholars cannot be expert in all the minute details of the law. Clerks are very helpful in this regard--under the guidance of the justices, clerks do much of the background research and then present it to the justices. The most important characteristics a justice needs to have, IMHO, is a coherent judicial philosophy; a keen intelligence; and the ability to evaluate the written material relevant to the case, and then think logically and apply that intelligence.

We learned a great deal about Mr. Roberts's capabilities from his responses at his Senate hearing. The same can be true for Ms. Miers, who will either demonstrate her capabilities or her lack thereof.

The bottom line is that the performance of Supreme Court Justices, once in office, are notoriously difficult to predict. There are often surprises in either direction. I think the Miers brouhaha is partly the result of an attempt to micromanage a situation that is always something of a gamble--the nomination of a new Justice.

Posted by: neo-neocon at October 27, 2005 12:14 AM

neo-neocon, you miss the heart of the issue and seem to be saying that results is what is important, not philosophy and principles.

Crank, got a redirect question for you on #13. Given that President Bush (and many pundits) have made a significant issue of the fact that Miers is a certain sort of Christian, indeed, the President said it was important in his decision making, how is this nomination not a violation of the US Constitution's No Religious Tests clause?

Posted by: Eric at October 27, 2005 12:19 AM
1. Some conservative/Republican pundits/bloggers honestly believe Harriet Miers would be, for various reasons, a bad Supreme Court Justice. Do you believe those pundits/bloggers should (a) state their concerns publicly, (b) keep their mouths shut, or (c) support her anyway?
Some liberal/Democrat pundits/bloggers honestly believe America is an evil empire, George Bush is a fascist, and that we're waging a war for oil. Do you believe those pundits/bloggers should (a) state their concerns publicly, (b) keep their mouths shut, or (c) support the war anyway? Sometimes the proper resultant behavior isn't the question; the premise is.
2. What issues are important enough issues to justify taking an active stand against a Republican president or Republican congressional leaders? Are there any such issues, other than the war?

Doesn't brutally selecting the winners of each election perform exactly that function? Convincing people to vote for Hillary is a proven method of punishing Republicans.

3. Is the GOP worse off because John Tower's nomination for Defense Secretary failed and he had to be replaced with Dick Cheney?

How would we know? In our reality, John Tower was killed in 1991. Maybe he'd have been President by now.

4. Is the GOP worse off because Republicans and conservatives - pundits, bloggers, and elected officials alike - participated in forcing Trent Lott to step down as GOP Senate Majority Leader?

I didn't realize conservative pundits and bloggers forced Trent Lott, Majority leader for all of a month (second time around), to step down. I thought it was President Bush and Bill Frist's backers. Yet prior to Lott's announcement only Lincoln Chafee of Rhode Island had publicly said he should make such a move, much less fill the airwaves with calls for Trent Lott's head. The reason anyone wanted Lott to step aside was to prevent distractions from the party's focus, which is exactly what the pundits and bloggers are now doing.

5. Is the GOP worse off because Ronald Reagan ran a primary campaign in 1976 against a sitting Republican president who then lost the general election by two points?

Can you say Jimmy Carter?

Questions 1 through 5 flow from the idea that what's bad for Republicans is good for Republicans, much like chanting "What does not kill me ? makes me stronger" as you empty your pistol into your foot. Citing all the times you survived shooting yourself in the foot isn't a sound sign of reasoning.

The Nominee's Qualifications and What Will Be Learned at the Hearings

6. Does it matter if a Supreme Court Justice does not write clear and logical opinions?

Not really. Almost every justice ends up as an ancient, drooling, senile judge. Justice McKenna once penned the court's unanimous opinion, but was confused about who won and wrote it the wrong way. Some justices write almost nothing at all, and some seem to write novels. Some footnote, some do not. Yet Harriet is apparently so good at writing logical opinions that her mere written briefs are persuasive enough to decide cases in her favor.

7. Does it matter if a Supreme Court Justice does not know constitutional law well enough to avoid writing opinions in one case that will have unexpected bad consequences in other cases?

The law of unintended consequences holds that this is an impossible standard to meet, and the history of Supreme Court rulings upholds this simple fact. If you want perfect justice, convert to Islam.

Further, law schools only offer six to eight credit hours in Constitutional Law. There's simply not more than a half a semesters worth of subject matter in the whole field, which is why law students spend their time on other aspects of the law, still somehow stretching things out into a three-year degree. Yet only about 20% of Supreme Court justices have held a three-year law degree, and only about half have held a law degree at all. The first so bedecked with legal credentials was John Marshall Harlan from Kentucky, the 45th justice on the court, though we've had quite a few law-school dropouts on the court since then.

8. Even limiting the search to lawyers in private practice who have not been judges, and judging by the standards of legal reasoning and persuasive argument, is there any reason to believe that Harriet Miers was in the top 50 or 100 best lawyers in this country? If not, does it matter that she is not?

Well, aside from her rating as one of the top 100 most influential lawyers in the country, and the fact that she was Chief Counsel to the executive branch of the US government, making her a bit more knowledgeable on those pesky seperation of powers issues than the average lawyer, well no.

Now, of your top 100 lawyers, probably only a third are Republicans. Of those, only about a third would be interested in the world's biggest pay cut to take a dead-end job in a city built in a swamp, spending the rest of their lives listening to people bitch about their problems. Two thirds of those would take one look at the guantlet of drawn daggers we've thrown up and run away screaming. Of the remaining three, two would lack a proper paper trail, just like Miers, and the other would have a paper trail guaranteeing a Democrat filibuster. This leaves us with Harriet, or someone much like her.

9. Please cite examples of Harriet Miers' writings that demonstrate an ability to write and reason clearly. If no examples are available, please explain why we should believe that such examples will be forthcoming before her nomination will be put to a vote.

If she cannot write and reason clearly, how'd she win so many important cases, such as the almost unheard of 12th amendment case that allowed Bush and Cheney to run? Perhaps those who say she can't reason clearly are clearly refusing to reason. People given to emoting and tantrums tend to do that.

10. What concrete, relevant information do you believe we will gain at the hearings regarding Harriet Miers' qualifications and philosophy that we do not already have?

Well, since we haven't waited to gain any concrete or relevant information thus far, why bother even listening to the hearings? Let's just make stuff up. I suggest we charge her with making a comma splice and misusing a semicolon, then pile rocks on her chest till she confesses.


Making the Left's Arguments

11. Do you believe that continuing to tout Miers' gender will, if she is voted down or withdrawn, make it impossible for President Bush to consider a male nominee?

For President Bush, nothing is impossible. It's even possible for him to consider Nancy Pelosi and Diane Feinstein.

12. Do you believe that continuing to tout Miers' religion will, if she is voted down or withdrawn, make it impossible for President Bush to consider a non-evangelical Christian nominee?

No, he could consider a Pentecostal.

13. Do you believe that it is important to have an evangelical Christian among the Justices? If so, why is this different from other religious tests, and is it proper for nominees to be questioned about their religion?

Evangelicals keep putting the Republicans in office, so it seems only fair to give them a seat at the table.

14. Are Harriet Miers' personal beliefs on abortion relevant to your support for her? If so, is it proper for nominees to be questioned about their personal beliefs on abortion?

No, because she will be either pro-life or pro-choice, whereas I think the country would profit economically from aborting all children and importing half-grown kids from China, carefully balancing education costs against freight costs as bulk cargo.

J/K. The odds of a serious and fundamental abortion case coming before the court are not very high, as opposed to an issue like partial birth abortion bans.

15. Of the three, which should the #1 goal in Supreme Court battles: (a) getting Justices who produce good results, (b) getting Justices who follow good legal reasoning, or (c) getting Justices whose confirmation provides political benefits to the party?

Your premise is flawed. The #1 goal should not be a Supreme Court battle.

Back At You

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

I agree with Miers statement that abortion should be banned by Constitutional Amendment. Correcting judicial activism with yet more judicial activism should sound familiar to those opposed to reverse discrimination.

17. Which five precedents do you think are in most pressing need of reversal?

Which five even deserve revisiting, or at least to the exclusion of so many other decisions?

Hyllton v. United States (1796), because carriage makers are under enough of a disadvantage against automobiles without having to face onerous taxation. Plus, with legal reasoning like this, how can we not take another look at the issue?

The Congress possess the power of taxing all taxable objects, without limitation, with the particular exception of a duty on exports.

If they weren't all dead, I'd suggest impeachment, conviction, and burning just for being in the room where that sentence was penned.

My next case would be Ex parte Bollman (1807), which held, in part, that "treason" as defined in the Constitution means actual involvement in an attempt to overthrow the government, not all the other acts of aiding our enemies that the rest of us like to call "treason".

Next up is International News Service vs. Associated Press (1918), which places limits on poaching the news.

Needless to say, the list is long.

Role Models

18. Would you be satisfied with another Justice just like Lewis Powell? Potter Stewart? Warren Burger? Anthony Kennedy? Sandra Day O'Connor?

No, they're all too old and long in the tooth.

Consequences

19. Do you believe that a significant portion of the GOP base is unhappy with the Miers nomination?

We'll know after the lynching is over. Right now, pundits are too busy screaming to take time to listen.

20. If not, do you believe that the pundits/bloggers who are openly critical of the nomination - including Rush Limbaugh, National Review, The Wall Street Journal, Bill Kristol, Laura Ingraham, Charles Krauthammer and George Will - are important parts of the GOP's ability to win public issue debates and elections?

Not any more. The National Review is daily sounding more like The Nation. The editor of the Wall Street Journal took a pass on the Miers bashing, and we'll see if any of the rest ever see the inside of the White House again. The Democrats have quickly started using support by the above as a litmus test for Senators who are puppets of the extreme right, and as many of the above have openly threatened any Senators who support the Miers nomination, we'll truly see if they like being told how high to jump.

21. Do you believe that the GOP is currently heading for a successful 2006 election cycle if it keeps doing the things it has done in 2005, or is a change of course needed to motivate the base and persuade swing voters?

Half the base is outraged at the circular firing squad aimed at a nice church lady, who's being denounced as an unqualified crony supported only by shills, so no, we're not heading for a good election.

22. Do you believe that a defeat for Miers would make it less likely that candidates with no paper trail will be nominated in the future, just as Bork's defeat make it less likely that candidates with extensive paper trails and well-known public positions would be nominated? Would that be a good thing?

We're getting down to candidates with fake paper trails. If Miers had a year on the bench somewhere, conservatives would've danced with glee instead of engaging in an orgy of self-flagellation and recriminations. She's at the top of her profession, outside from navel gazing academy experience, and people at the top of well-established and slow changing fields like law only can vary by a few percent, at best. For example, a year on the bench would've upped Miers' qualifications by maybe 5%, so I conclude that nobody is really qualified for the court, since no one is more than 10 or 20% past someone who is "completely, absolutely, breathtakingly unqualified."

Posted by: George Turner at October 27, 2005 1:19 AM

[Deleted by moderator. I have no idea what this comment was about but it was too long and totally off topic]

Posted by: Insider at October 27, 2005 2:56 AM
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