Monday, October 17, 2005

DC Rules: Hugh Hewitt Not Guilty of Fraud, but Guilty of Incoherence and Inconsistency

A brief disclaimer is in order as I ask you to strap yourself in for a long ride. If you care about the Miers nomination to the SC, though, I think you'll find it worthwhile. You should know that I like and respect Hugh Hewitt. Nothing herein is meant as a personal attack. But Hugh has really got it wrong on the Miers nomination, in my judgment. I think it is important to expose his faulty logic and reasoning. You can decide for yourself and act accordingly.

Over the weekend, a diarist at RedState posted the following "smoking gun" regarding the arguments made by Hugh Hewitt before Harriet Miers was nominated. And here's Hugh's response to the RedState post.

In addition to arguing that the nominee should be closer to 50 than 60, Hugh said:

You see, I've tried to explain to people about Judge Janice Rogers Brown, that she has not been a federal judge. And my concern over her and Priscilla Owen is, that federal judges just do different things than state judges. And I want to see a little bit from them, before you run as a conservative. I don't want to run blind. And I think she really hasn't done, for example, federalism issues, hasn't done federal pre-emption, hasn't interpreted the free exercise of the establishment clause, though there are Constitutional counterparts in California. That's my concern .... I just don't think they're reliable enough when it comes to understanding how they'll handle federal issues.
I mean, but couldn't we just "trust the President" before 10/3 in the same way we could post-10/3, Hugh? Maybe not.

And then Hugh argued the following:

And brilliance matters, even if you're a dissent, because you've got to mold the law schools. You've got to mold the professions. You've got to look ahead. I think Bush needs to go for someone about whom there is no question of intellectual...the capacity for intellectual greatness.
If I were a Miers supporter, perhaps I would argue that Hugh's position was "elitist". But no, it was just pre-10/3/05. And I think he was telling the truth then. And he was right. And after perusing Miers vacuous ruminations in the Texas Bar Journal, let there be no more pretending that Miers is some brilliant scholar.

Suffice it to say, we haven't heard such arguments (about the need for brilliance and/or a track record) from Hugh since October 3. Yet, we have heard plenty of similar arguments from the critics of the Miers nomination -- people such as myself -- since 10/3. As is often true in situations such as these, the charge (of fraud) is too steep ... thus, giving Hugh an out. But his defense is also weak, especially to the lesser included charge of an inconsistent, incoherent, and weak defense of the Miers' nomination. So, "not guilty" to the charge of fraud, but to the charge of inexplicably incoherent? Absolutely, positively 100%, O.J. Simpson-style, guilty.

Dissecting Hugh's Defense

Not surprisingly, Hugh response concludes with, and ultimately rests upon the "Trust me" theme: "But the field is large, many forces are at work on it only a few of which I glimpse, and President Bush has not broke his word on a promise to his party yet."

A few weeks ago, I would have said the same. Indeed, most of the conservative angst at Pres. Bush is not over the fact that he has broken promises, but over the fact that that he has not governed as a conservative. For example, understandable conservative concern over immigration is not as a result of Pres. Bush breaking a promise. He has always been strangely silent about the growing immigration problem. Furthermore, he promised he would pass medicare reform that included prescription drug coverage. I wasn't excited about this promise during the campaign, but you can't say he didn't keep his word on this score. Recall, too, that he said he would govern as a "compassionate conservative", but he never defined the term. Others were left to speculate what this might mean.

However, fast forward to this dispute: The President clearly promised (albeit without using those precise words) to nominate judges in the mold of Scalia and Thomas. So, conservatives have rightly asked if Harriet Miers fits this description. Meanwhile, we have been troubled by statements such as those by Texas Sen. John Cornyn: "She is no Scalia and Thomas." Well, maybe Sen. Cornyn is wrong or means something other than the plain meaning of the words themselves (an ironic twist in this debate, for sure). Maybe I should just be inclined to give the President the benefit of the doubt. Maybe I would ...

But George Will's recent column on this controversy pointed out something to me that I had frankly forgotten. In recent years, Will has worn thin as he has seemed all-too-ready to try his "independent" wings. But I read the column and was persuaded by it. Why? Because facts are stubborn things. Here is the passage that really struck me:

In addition, the president has forfeited his right to be trusted as a custodian of the Constitution. The forfeiture occurred March 27, 2002, when, in a private act betokening an uneasy conscience, he signed the McCain-Feingold law expanding government regulation of the timing, quantity and content of political speech. The day before the 2000 Iowa caucuses he was asked -- to ensure a considered response from him, he had been told in advance that he would be asked -- whether McCain-Feingold's core purposes are unconstitutional. He unhesitatingly said, "I agree." Asked if he thought presidents have a duty, pursuant to their oath to defend the Constitution, to make an independent judgment about the constitutionality of bills and to veto those he thinks unconstitutional, he briskly said, "I do."
Again, think what you may of Will, but facts are facts.

I knew Pres. Bush opposed the disasterous McCain Campaign Finance "Reform" -- a measure that has now spread its perniciousness tentacles even into the blogosphere -- but I thought the President signed it to avert a showdown with McCain and to preserve precious "political capital". Well, it turns out the President did just that, but he also broke a promise in the process.
And he broke a promise at the core of the Miers debate -- Can we trust the President to be faithful to a conservative understanding of the Constitution? My answer now is: Perhaps we can, but I want to be able to verify for myself whether Miers is in fact a conservative in the mold of Scalia or Thomas. To date, there is no evidence to support this assertion. In fact, the evidence is that Miers is an indecisive woman who has changed her views in various roles and stages of her life. She has espoused liberal opinions on multiple occasions and in multiple decades, but the President brazenly and almost humorously says, "I know she'll be the same in 20 years." I won't chronicle all of Miers' zigging and zagging here, but there is considerable doubt that she is in fact a fulfillment of Pres. Bush's campaign commitment.

If during the campaing the President had said he would nominate people like Harriet Miers to the SC, how many people would not have voted for him?

As for Hugh, the problem with his position is not that he has now -- his previous comments notwithstanding -- decided for political reasons to suport the nomination. The problem is what he and the WH's other supporters have said about those of us who disagree with the very same arguments that Hugh made pre-10/3.

To those who have argued about Miers that "brilliance matters" post-10/3, Hugh and the WH have said that we are "elitist", indeed part of the dreaded "Bos-Wash axis of elitism." That is a nice ad hominem swipe aimed to knock us Miers opponents all the way to the middle of a Red State wipeout. But, come on, Hugh. I live in the capitol of Red State America -- Texas.

Recall, too, that Hugh has also intimated that there is a "hint" of anti-evangelicalism in the air, as well. And this "anti-evagelicalism" stems from ... you guessed it ... elitism. And Hugh has warned of an "evangelical backlash" against the "elites" if Miers is not confirmed. Recently, Hugh said, "To vote against Miers because the Bos-Wash Axis of Elitism is against her is not the way to gain Evangelical favor. The opposite, in fact, is true." Here is another sample: "I don't think the folks who are predicting "no fallout" from the defeat of Miers are aware of the anti-Evangelical perception that is growing." So, the not-so-subtle point Hugh has been making is that the conservative "elites" don't like Miers because they don't like her religion. This sounds like arguments that liberals make about conservatives, does it not?

In sum, the common theme in Hugh's arguments has been that opponents of the Miers nomination have had improper motives - elitism, anti-evangelicalism, etc. He has pulled no punches, stating the Miers opponents were engaging in the "big sulk", were behaving like "Kos Kids", were "D.C. druids", and when questioning the resume of Harriet Miers were engaging in a course of conduct of no utility and "zero honor".

If I were Andy Card, perhaps I'd call such arguments "cynical" or worse. But I'm not Andy Card. I just a conservative Christian from Texas. So, I will simply say that Hugh's just wrong, and he's grasping at straws. And dare I say it? Yes, he's calling names because his argument is so very weak.

The fact is that conservatives skeptical of the Miers pick are simply making the case for "brilliance" and for a conservative track record. Herein lies Hugh's problem: It is fine for him to argue that his position changed. But it is inconsistent or incoherent to impute bad motives to those making the same arguments he has recently made.

To top all of this off, Hugh's credibility on the Miers nomination was forever tarnished by his gushing statement on October 3 that Miers was a "solid, B+ pick". Recalling from the grading scale, if "A" is excellent, and "B" is good, that would make Hugh the only person in America who believes this is a very good pick (except for Laura "Those Who Disagree are Possibly Sexists" Bush). Yet, I think he knows this is not the case. And I don't think he's misrepresenting here, either. At least I don't want to believe that. I just think that Hugh is so inclined to give the Republicans a pass that he just has a hard time seeing the truth. Hugh takes the sympathetic argument -- my country, right or wrong -- and mutates it to "my party, right or wrong." I am unwilling to go this far.

The truth is that, through the rosiest of rose-colored glasses, this was a "C-" pick. Hugh should have said so, and in the process would not have lost so much credibility in this debate. I will be charitable and give the pick a "D". After all, it has only shattered conservative confidence in the President and emboldened his opponents, while potentially taking a 30-year opportunity to reshape the Court and instead turning it into a colossal disappointment. Even if Miers turns out great (again, I very much doubt this) the path to her appointment to the bench will likely be littered with political casualties -- Republican and/or conservative ones.

Hugh argues the opposite, but my thesis here is demonstrably true. The battle lines are drawn, and now ... if the nomination goes to a vote ... Republican senators must vote and risk alienating much of their conservative base, no matter how they vote. It is a lose-lose situation, without enough time before the '06 elections to see how Miers will really pan out.

The Texas/Evangelical Connection

To bolster his "trust me" argument, Hugh cites an impressive list of supporters of the nomination. I know and respect many of these people, especially Marvin Olasky, Lino Graglia, and Judge Ken Starr. A couple of observations are in order here, though. First, a careful reading of the opinions of these supporters reveals tepid endorsements in virtually every case. In fact, compared to similar endorsements of the Roberts nomination, the Miers endorsements are strikingly weak. Second, nearly all of Miers' supporters are Texans and/or evangelicals. Like me. So, what's my problem, you ask? Well, for one thing, I have the benefit of operating in relative anonymity, known only to a few loyal readers of this blog.

Texas lawyers are particularly under the gun, like poor Beldar. Beldar is identifiable, and let this Texas lawyer (yes, I am "out" because it is necessary to make this important point) tell you a cold, hard truth: There will be almost certainly be hell to pay for Texans, especially lawyers, who do not toe the line on this nomination. Beldar may deny this; in fact, I would expect him to make an impassioned -- albeit long-winded, as always -- defense of his position. To illustrate this point, there are a couple of more Texas supreme court justices making the trek to Washington today to make the Miers case -- a Democrat and a moderate Republican, by the way. Whoo ... I feel better.

The foregoing explains why you can expect more toeing the line by poor Sen. Cornyn. Sen. Hutcheson will do the same, as well. I understand. Speaking out would essentially be political suicide, and neither made promises to oppose the President's nominees during the campaign. Heck, they thought the President's nominees would be like Scalia or Thomas.

So, as for the Texan and evangelical supporters, I get it. They are making judgments based on people they know, and that is fine to a point. As for Judge Starr, recall that he also supported and vouched for the pro-life bona fides of Sandra Day O'Connor. We all make mistakes.

I may be wrong here, and I sincerely hope I am.

As for the evangelical and pro-life take on this nomination, I am not alone in my opposition about this nominee. Hardly. Pro-life groups such as Operation Rescue and National Pro-Life Action Council have come out in opposition to this nominee. Furthermore, in spite of notable evangelical support, many evangelical Christians remain unconvinced. As I noted in my previous post, only 43% of evangelicals support this nomination, according to the Pew Research Center. That figure makes the weak conservative support look strong by comparison. It is more than a bit ironic, I think, that those famous evangelical sexists, Concerned Women for America, have made perhaps the best case best case for skepticism on the Miers nomination to date. Take a look.

Maybe Hugh was right that there will be an evangelical uprising over this nomination -- if Miers is confirmed, that is.

The Verdict

In reaching my conclusion, I found this this jewel from Hugh, written on October 2, the eve of the Miers' nomination:
In the end, I am hoping that President Bush makes a choice that he can defend to the country as a simple merit pick, free of political calculation or constituency bolstering. Very few, if any, serious ConLaw scholars would debate the intellectual qualifications of either man [Luttig or McConnell], and their colleagues from the Reagan Executive Branch, the law school community or the bench will sing their praises. Either will be opposed as too conservative, which is simply outrageous partisanship. So there will be a fight, and the GOP has the votes to win.

There has never been a filibuster of a SCOTUS nominee over the perception of how he or she would vote. If the Senate Democrats mount such an effort, the country will get a very clear lesson in how unhinged that party's leadership has become from the country's political history and mainstream, and the Senate will have to vote on whether the filibuster can be applied to SCOTUS nominees. The Republicans will win that debate and that vote.

When the battle is over, and five and ten and twenty and perhaps even thirty years later, George W. Bush will be able to confidently assess his first two nominees to the SCOTUS and know that he did exactly the right thing for the right reasons.

The Supreme Court deserves the best jurists available to it. If the Constitution matters, then the nominees to join the court that interprets the Constitution should be those judges with the best intellectual talent, calm temperment and governmental experience.
Wow. Couldn't have said it better myself.

The only difference between Hugh and the legion of furious conservatives is that we are still making the arguments Hugh was making on 10/2. Hugh changed course on 10/3, as is his right. I am sure he has reasons for trusting the President's judgment. As I have said, people that I know and respect are doing the same.

But aren't the Miers opponents entitled to the same deference? Indeed, it is wrong to castigate those of us who want the same for our Supreme Court today that we wanted before the Miers' pick.