Baseball Crank
Covering the Front and Back Pages of the Newspaper
October 24, 2005
LAW: The Elitist

I have enjoyed and respected Hugh Hewitt's contributions in the past, even if he is the Josh Marshall of the Right, a guy who is not just the most thoroughly partisan of pundits but one who seems to draft every post with the express goal of moving the chains in his side's direction.

But Hewitt has really gotten on my nerves, as well as those of a lot of other conservatives, with his bareknuckled assaults on critics of the Miers nomination. Among these arguments, he has spent weeks arguing that those of us who want Supreme Court Justices to actually know constitutional law are misguided elitists; con law, Hugh argues, is just so simple that any half-decent lawyer can do it. It is, if anything, anti-democratic to insist that only those familiar with the body of constitutional law can serve on the Court. A curious argument coming from a man who teaches constitutional law, but that's his position, and he's stickin' to it. Or was.

Saturday, comes Hewitt to take on conservatives concerned about Miers' past support for racial preferences at the Texas Bar (Patterico has more on this topic). Here is his response:

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.

For a guy who thinks Supreme Court Justices don't need to know Con Law, Hewitt sure is quick to use his own expertise in the area to pull rank over pundits who don't know Con Law.

UPDATE: Jonah Goldberg makes the point succinctly as to why the requirements for having informed opinions is lower, not higher, than the standard for getting the job: "Ben Affleck deserves an Oscar more than I do, but that doesn't mean he deserves an Oscar."

Posted by Baseball Crank at 12:24 AM | Law 2005 | Comments (26) | TrackBack (1)
Comments

Crank

If Hewitt is getting on your nerves you love this little post on Red State.

http://www.redstate.org/story/2005/10/23/95137/041

Posted by: GEB4000 at October 24, 2005 12:45 AM

Crank- You said it better than I could.

The funny thing is that Hugh Hewitt is usually a strict credentialist---he tends to lend a lot of credence to views based particularly on resumes. That Miers doesn't have much of a resume for SCOTUS suddenly doesn't matter much.

In our post (which links to yours), we take a slightly different view of the reason for this cognitive dissonance on Hewitt's part:

http://moltenthought.blogspot.com/2005/10/curious-credentialist.html

Posted by: Teflon at October 24, 2005 8:10 AM

Hugh is burning so much credibility on Miers. Why?

Posted by: That Dude at October 24, 2005 8:21 AM

Hewitt has never been a conservative. He used his undeserved radio pulpit to push for Arlen Specter over Pat Toomey - that should have told you about Hewitt.

Also, make sure you note his offical email policy - "any racist email will be reported to the authourities". Any man who's not embarassed to post such a statement is not a conservative.

Posted by: David farkas at October 24, 2005 10:41 AM

Hewitt has a definite lack of foresight on many issues. Remember: this is the pundit who was THE leading voice on the right arguing for Arlen Specter to be allowed to take his place as Chairman of the Senate Judiciary Committee -- and that has been a net negative for the President (The Monk has theorized that Specter's presence as SJC chairman has forced the Bush Administration to modify its appointments to meet Specter's preferred qualities to ensure Specter will act favorably in Committee and forestall embarrassment).

Hewitt is convinced that Miers is a stealth Roe-killer; there's really no other explanation that can be favorable to him (such as the possible alternative explanation: he's tired of Catholics and Jews on the Court, so he really wants an evangelical Christian). Thus, Hewitt has become the Right's Andrew Sullivan on this issue -- screechy, whiny, flame-throwing and incontinent.

Posted by: The Monk at October 24, 2005 11:29 AM

It does raise an interesting question, though. At least part of the rational the Democrats gave for suggesting someone like Meirs was to get someone of the bench who actually practiced law, to not yet another judge or legal scholar. It seemed like an attempt to put someone on the Court who was more aware of the problems of everyday people.

Unless you pick someone who's spent most of their career practice Constitutional law, how does someone like that become qualified by your standards? And if you do pick someone who practiced Constitutional law what are the chanced they know what it's like to draw up a will or face down a city council or any of the things that ordinary people need the courts and the laws to do?

Is it an impossible objective? Balancing the Court while putting someone "qualified" on it?

Posted by: Strick at October 24, 2005 11:46 AM

Hugh is on record as actually promoting an elitist mindset in his book "In, But Not Of", where he advises young Christians to go to fancy schools, etc., to get with the crowd that has the influence on the world. Sort of like he did.

But though I think he has gotten a bit hyperbolic at times in his earnest defense of the Miers nomination, he has been a lot less so than Will, NRO, Prof. Bainbridge, or the other virulent commentators who are so unhinged by this that they have taken to criticizing the proofreading of her questionnaire responses for one letter typos as evidence of her unfitness for the job (http://bench.nationalreview.com/archives/080370.asp).

This would have been far better in every respect if those opposed had made their substantive objections known and then shut up, at least with the hortatorical invective, until there was something real to talk about. The first legitimate policy-oriented issue I've seen brought up is the Texas Bar Assn minority set-aside, which is a substantive policy matter that people can discuss, pro and con, in an adult manner.

But it was, and still is, demeaning to a distinguished attorney to say that unless she is an incompetent idiot she is supposed to remember the names of ConLaw cases (e.g., the 1920's Nebraska case on German language instruction, etc.) that only law professors remember after ConLaw 1- you remember the concept, the ruling, but seldom the rationale or the case name. And there is absolutely no reason to remember it all, even for one going to the Court.

And to be apoplectic about her statement that Griswold was "correctly decided" is simply unfair, revealing more ignorance on the part of those protesting than Ms. Miers herself. I tend to agree that Griswold WAS correctly decided, while disagreeing with Douglas' rationale. If you read the decision again, you can very consistently argue- with Harlan- that the state has no right, where we are "endowed by our Creator with certain inalienable rights... among these... life, LIBERTY..." (emphasis added) to intrude on the intimate affairs of married couples. That says absolutely nothing about Roe, which made no pretense whatever of any natural law or Constitutional basis. Harlan goes to the 14th Amendment, implicitly incorporating the originalism of the Declaration in declaring our independence from state interference in our daily lives. Where there is another life involved- as in a fetus- there is a state interest in protecting that helpless life. What's not to like about liberty and morality, predicated on marriage, as the Griswold decision- not the Douglas opinion rationale- concluded?

The thing to do, still, is to see how she handles the hearings and the questioning. Ask her detailed questions about philosophy. If she refuses to answer, or gives answers you don't like, vote her down.

But the current right-vs-right food fight has brought out the petty in everyone, and makes me ashamed to be a conservative. Some of these postings in various places sound, in form and even substance, like Daily Kos.

Posted by: Kurmudge at October 24, 2005 11:57 AM

Everyone has a litmus test - the secret for a nominee is not saying anything about anything and hold your breath while senators crucify you.

Posted by: Reporter for Doody at October 24, 2005 12:54 PM

I'm still on the fence on this Miers thing, but leaning towards "no," mainly because Hugh's defense of her (and he's just about the only one defending her) has been... well, lame.

However, I'm disappointed that the Baseball Crank resorted to a football analogy (moving the chains) to describe Hugh's advocacy. I think baseball analogies should be required.

Posted by: Hoystory at October 24, 2005 2:09 PM

According to the logic here, Reagan wasn't a conservative. You people aren't bright enough for me to return.

Posted by: EasyLiving at October 24, 2005 7:37 PM

Another quote from the linked Hewitt piece:

George Will has a lot of opinions about the SCOTUS, and he expresses them well. He makes sense. George Will is certainly no ConLaw scholar, nor even a professor of a different branch of the law, or even a lawyer. He is, rather, a bright, hard-working, indeed superb craftsman of language.

George Will could serve ably on SCOTUS.

Well, I guess that's one way to deal with the qualifications questions. The lowering tide grounds all ships?

Posted by: Pooh at October 24, 2005 9:47 PM

David Farkas said, "Hewitt is no conservative". That is completely true. Hewitt has supported every anti gunowner law that the dingbat California legislature has passed in the last 20 years.

In republican primaries he claims to support "the most conservative candidate who can win". Invariably, that turns out to be the most liberal one running.

For years he refrained from calling himself a conservative, preferring "center right" instead.

Posted by: Hi Power at October 25, 2005 12:52 AM

What on earth is wrong with Hewitt's post? He makes a perfectly fair point about what is and isn't a matter of Con Law. Do you prefer people to be ignorant of the difference?

As for whether or not Miers has the credentials to be a SCOTUS justice, you people do realize, don't you, that this was the exact same argument that was made by liberals against Clarence Thomas when his nomination was before the Senate.

I don't know about Miers yet. The president has made a "boatload" of first-rate appointments to the bench. I think I can wait until I actually see her speak in the hearings before I make up my mind. He deserves at least that much from me.

Posted by: G. Ruggles, Jr. at October 25, 2005 2:21 PM

First off, regardless of what arguments "liberals" may have made about Clarence Thomas when George HW Bush tabbed him to sit on the Supreme Court, he had been a judge on the DC Circuit for over a year, and before that he headed EEOC for 8 years. Not quite Lottery Director, is it?

Secondly, I think your post, Mr. Ruggles, says much about the impassioned defense that you & others are maintaining: you say that "he," meaning the President, deserves your open mind. I hate to break it to you, but this is not about the President and it's not about the Senate. It's about Harriet Miers as a potential Justice, the Supreme Court as an institution, and the citizens of the United States. The fact that you and Hewitt and Kurmudge and John Salmon think it's about George Bush tells me, and many others, all we need to know in order to understand your stance.

Posted by: Mike at October 25, 2005 2:52 PM

Impassioned defense? Wow! I thought my defense to be rather lukewarm. You just don't like anybody to have a different point of view, do you? I hate to break it to YOU Mike, it IS, in part, about the president. He is the one who made the nomination. If this nomination is withdrawn, he will be the one to make the next nomination.

I suspect a large part of the president's decision arose from his own "Souter-phobia". Harriet Miers is someone he believes in. Maybe his trust in her is misplaced. I don't know...

I'm not imressed with arguments about her supposed lack of credentials. Hewitt's point about George Will strikes me as very conservative. The Constitution doesn't require one to have been a judge to serve on the Supreme Court. It isn't lowering of standards to be willing to consider the qualifications of intelligent citizens who don't happen to be on the bench.

Yeah, I think the president deserves an open mind about this. I'll wait until I actually hear from his nominee first before I make a decision about her as a potential justice. Silly me.

Posted by: G. Ruggles, Jr. at October 25, 2005 8:46 PM

"Yeah, I think the president deserves an open mind about this."

Well, you've said it again. And that's my point. If you think "an open mind" is important, I respect that. It's your choice of phrase -- the PRESIDENT deserves one's open mind -- that I find revealing. Seems to me you're letting politics and obedience affect your judgment. That's not "silly," just unfortunate.

Posted by: Mike at October 26, 2005 6:21 AM

"Seems to me you're letting politics and obedience affect your judgment."

I'm letting his past performance in picking judges (which has been very good) affect my judgement. Yeah, the PRESIDENT deserves an open mind. He made the choice. I'll reserve my judgement about his choice until I hear more from the nominee.

As for your crap about "party politics and obedience" go piss up a rope. You don't know me. You presume WAY too much.

Posted by: G. Ruggles, Jr. at October 26, 2005 7:51 AM

You're correct. I have presumed way too much:

1. I presumed you could talk to me about a few of these "very good" judges he's picked. Well, no more presuming, Mr. Ruggles. Care to tell me the names of a few? What courts they sit on? What, exactly, makes them "very good." Cite a couple opinions that'll help me stop presuming, and see the light? I'd really appreciate that, and it'll allow you to show everyone reading how much you've learned through your open mindedness, and what a presumptuous jerk I am.

2. I presumed it might take more than one suggestion that maybe you were playing politics, before you threw up your hands, decided that reasoning & argumentation were just too darn difficult, and told me to "go piss up a rope." I'm gonna presume that's probably pretty difficult and ignore your suggestion. Ok?

3. I presumed you knew how to spell "judgment." Not to seem "elitist," or anything, but since you've read so many "judgments" by all of Bush's "very good" judges, I just kinda' . . . presumed, you know?

Posted by: Mike at October 26, 2005 8:59 AM

So very clever. Give me a hard time over a freaking typo.

Yeah, you're presumptuous. It took you one post to decide you knew all you needed to know about my stance. When you begin there, you shouldn't be too surprised when "reasoning and argumentation" doesn't follow.

As for Bush's judges, go do your own research. The fight over his lower court nominees has been a very public one. It's not that hard for you to educate yourself a little as to the quality of his appointments.

Posted by: G. Ruggles, Jr. at October 26, 2005 10:07 AM

Typo, huh? Ok.

Maybe I was presumptuous, but was I wrong about your stance? I said that you seemed not to need anything more than the President's stamp of approval. And after three e-mails worth of give-and-take you still don't feel much like talking about any of "the boatload" of Bush's "very good" judicial nominees, do you? Could it be that you don't know any of these nominees? That maybe -- as I presumed in my first post -- you know only that the President SAYS they're very good?

Hate to break it you you, Mr. Ruggles, but you're proving my point for me.

Posted by: Mike at October 26, 2005 10:36 AM

Not WAS presumptuous. You still are. I don't owe you anything. Do your own research. It's not hard to find people other than the president who've had good things to say about his nominees.

Posted by: G. Ruggles, Jr. at October 26, 2005 4:45 PM

The President withdrew the nomination. Shall I presume that you unquestioningly support that decision?

Posted by: Mike at October 27, 2005 2:30 PM

You have a bad case of compound ignorance. You don't know and you don't know that you don't know. Good luck with that.

Posted by: G. Ruggles, Jr. at October 27, 2005 7:02 PM

Aw, c'mon man. It's not THAT embarrassing, is it?

But I guess it must hurt to defend another man's indefensible decision based only on blind faith, only to watch that same man pull the rug out based only on cynical, political reasons.

Especially for someone like you who never lets "party politics" or "obedience" to his leader interfere with his judgment. You'll recall you told me to "piss up a rope" when I presumed to suggest that.

Posted by: Mike at October 28, 2005 6:22 AM

No, it's not embarrassing - at all. I said I didn't know about Miers yet and that I'd wait until the hearings until I made up my mind. That's "defending another man's indefensible position"? If you say so...

And how was the rug pulled out from under me? In my second post I openly speculated about the possibility that this nomination could be withdrawn.

You. don't. know. me. Somehow you got it into to your brain that you do, but you don't. And, let's face it: you're not particularly interested in who I am or how I think.

The last few days you've been setting up strawmen and attaching my name to them. I suppose it's something to do but for me it got old fast. I have better things to do. If you reply to this, you get the last word. I'm outta here.

Posted by: G. Ruggles, Jr. at October 28, 2005 9:59 AM

Not the last word. Just an honest handshake. It's been (sorta) fun.

Adios.

Posted by: Mike at October 28, 2005 11:06 AM
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