Patterico's Pontifications

10/25/2005

Answering Hugh Hewitt’s Questions

Filed under: Constitutional Law,Judiciary — Patterico @ 6:13 pm



Hugh Hewitt has propounded some questions to the anti-Miers crowd. Here are my answers:

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

Answer: It depends on what you mean by “loyalty.” If “loyalty” requires me to remain silent while the President crams a second-rate Supreme Court nominee down my throat, then the answer is “no.” No President merits that kind of “loyalty” from me.

Question: Do Harriett Miers’ many accomplishments count for nothing?

Answer: Of course they count for something. But that something is not an entitlement to a spot on the Supreme Court. If Bush wanted to nominate Miers to a Circuit Court of Appeals, I wouldn’t have a violent objection to that.

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

Answer: Yes.

Question: Why not wait for the hearings to at least begin?

Answer: Because I am exceedingly unlikely to learn anything in those hearings that would assuage my concerns, and I think it would be better for all concerned if the nomination were withdrawn before we got to that point.

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

Answer: Critical.

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

Answer: Off the top of my head:

1) Casey/Roe
2) Grutter (affirmative action)
3) Miranda
4) Roper v. Simmons (banning execution of juveniles)
5) Atkins v. Virginia (banning execution of the retarded)

Those last two are decisions whose reasoning amounts to a wholly unwarranted judicial grab of power. I’m not a big fan of Kelo or Raich, either. [UPDATE: Or Lawrence.] [UPDATE x2: And McConnell! How could I forget McConnell?!] I’m sure there are others.

Question: Does the commentator agree with George Will’s assertion of Justice Lewis Powell as the “embodiment of mainstream conservative jurisprudence?”

Answer: Nope. Powell was a disaster. Since you mention it, so was Potter Stewart, to whom you, Hugh Hewitt, have compared Harriet Miers. Stewart concurred in Roe, and concurred in Furman v. Georgia, an opinion striking down all death penalty laws in the country on bogus grounds. He lacked consistent principles, preferring instead an ad hoc theory of judging, pursuant to which he “knew it when he saw it.”

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

Answer: No.

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

Answer: It depends on the replacement nominee. If it is a Luttig or a McConnell, the party will breathe a universal sigh of relief. Republicans will be unified and energized. Confirmation of such a nominee (while made more difficult by the Miers nomination) would show America that the Republican party values quality over cronyism.

If Miers is confirmed (as I expect she will be), the rift will take years to repair.

UPDATE: Jeff G. answers the questions as well, and reminds us of one of the Court’s worst decisions, the McConnell decision upholding an unconstitutional campaign finance reform law. How could I have forgotten that one??

33 Responses to “Answering Hugh Hewitt’s Questions”

  1. So you are fine with Lawrence v. Texas?

    [No. But I could list only 5. — Patterico]

    James B. Shearer (fc887e)

  2. Thanks, every time I read the views of people like you I know I ain’t THAT conservative. If you have ever been arrested for doing nothing you’d know that Miranda is the only thing standing between habitually abusive police and the public. And I’m absolutely sure we shouldn’t be executing children and the retarded. Here’s hoping people like you don’t ever take over.

    Howard Veit (baba22)

  3. If you’ve ever been arrested for doing nothing, Miranda ain’t gonna save you.

    Christopher Cross (ca6ad3)

  4. That’s right, attorney’s don’t need Miranda do they?

    Tillman (1cf529)

  5. Have those of you who think Miranda is such a great idea seen the gigantic consent forms that police need to produce and explain every time they want to interrogate a suspect?

    Angry Clam (363eb0)

  6. Dodge

    Hugh responds indirectly to the criticisms leveled at himn in my previous post:It is impossible to read that line [ "The majority of commentators who are not lawyers—there are many—are simply not equipped to judge Harriet Miers’s…

    protein wisdom (c0db44)

  7. I went with Kelo, Raich, Bolinger, Simmons, and McConnell. But I’m not a lawyer, so take that for what it’s worth.

    Jeff G (302dff)

  8. Howard,

    If you want the police to make certain declarations to criminal defendants, or if you want your state to not execute juveniles or the mentally retarded, why not take up those issues with your legislature? Weren’t its members elected to say what the law should be?

    Paul (d779f8)

  9. You say you are qualified for SCOTUS
    Because you are a friend of the POTUS
    But once in the gown
    We’ll all wear a frown
    When you “grow” and then liberally screw us

    Clay (b7d077)

  10. Thanks, every time I read the views of people like you I know I ain’t THAT conservative. If you have ever been arrested for doing nothing you’d know that Miranda is the only thing standing between habitually abusive police and the public. And I’m absolutely sure we shouldn’t be executing children and the retarded. Here’s hoping people like you don’t ever take over.

    Howard,

    I’ve seen you comment here before and I know you’re not some moron. So I’ll bite my tongue and not snap back the way your comment tempts me to, and just ask you a couple of questions:

    1) Do you understand that we are having a constitutional debate here, and not a policy debate?

    2) Does it matter to you in the slightest whether the Supreme Court’s constitutional decisions comport with the Constitution, or are you just looking for the best policy result, and the Constitution be damned?

    I.e., are you Chuck Schumer with a blog?

    If you want to have a *constitutional* debate over Roper, Atkins, or Miranda, let’s have at it. Your ass will be handed to you in short order.

    If you want to have a *policy* debate, fine — but this ain’t the forum. Should Congress pass some form of Miranda? Should states outlaw execution for juveniles or the retarded? Those are entirely different questions from what we’re discussing.

    And before you weigh in on even that policy decision, you might want to at least read Roper to see what happened in that case.

    My view on Miranda: police should still read people their rights, and the validity of confessions should be determined on a case-by-case basis, looking at the voluntariness of the confession according to the totality of the circumstances. Reading a suspect his rights would weigh heavily in favor of the police on that issue, which would encourage them to continue to do so.

    On executing juveniles and the retarded, I’d leave it to the states and to juries. No automatic pass just because a mass-murdering monster has a 79 IQ or is 3 days from his 18th birthday.

    But that’s a policy issue. Do you understand the difference? It’s an honest question, based on your comment.

    Patterico (4e4b70)

  11. Patterico:

    If Miers is confirmed (as I expect she will be), the rift will take years to repair.

    Suppose Miers is confirmed, and then eight months from now, Stevens retires for health reasons or (God forbid) dies, and Bush names J.M. Luttig to replace him.

    Will you still feel a “rift” between you and the president? Will it still take “years to repair,” as far as you and the president are concerned?

    Dafydd

    Dafydd (f8a7be)

  12. Yup.

    Take Roe as an example. Do the math.

    Six minus zero, minus one, equals five. Five votes for Roe v. Wade.

    Patterico (4e4b70)

  13. Jeff G.,

    How could I have forgotten McConnell?

    Patterico (4e4b70)

  14. […] It will be painful seeing Hugh Hewitt embarrass himself defending this one. And on that topic, Patterico has the answers to Hewitt’s questions for Constitutional patriots. […]

    PrestoPundit » Blog Archive » MY GUESS? (d881ce)

  15. We don’t start arguing at Marbury v. Madison?

    Al (00c56b)

  16. My reply to Patterico: 1. One night while driving home after a night shift I was pulled over by what turned out to be vice officers pissed off that they arrested a person who was not involved in the drug bust they were about to pull off. They bent me over the hood, took my clothes, handcuffed me and took me into the station. Then after booking I was taken upstairs and grilled. There were two cops, one big and one little. The big cop left and the little one called me names, told me I was a fag (I was an upcoming actor at the time), told me I was going to the Glass House (the local name for the jail downtown). Then he took my wife’s engraved watch that I had pinned to the inside of my jacket and read her name: “Clairice, this the lady you stole it from?” And then he proceeded to describe my slut wife sitting at home and fucking a “chink, a dirty yellow chink cock is in your wife’s mouth right now,” said he. Well I was pissed, but luckily I turned toward the door and I saw pressed agains the opaque glass door about six feet six inches from the floor, an ear. The ear belonged to the big cop who was just waiting for me to do something so he could kick my ass. To make a long story short, they prevented my wife from bailing me out by placing me in a paddy wagon for two hours before taking me to the main jail. I won’t continue this sagging saga except to say that they filed 34 charges of resisting arrest against me, all of which vanished into thin air because they didn’t “Mirandize” me. As far as “making law” when they ruled against killing retards and kids, then I am for making law if that is what it is. In Roper the state court set a 17 year old up by waiting til he was 18 so they could try him as an adult ruling that the Constitution prohibits the execution of a juvenile who was under 18 when he committed his crime. This was backed up by another opinion that a national consensus had developed against the execution of those offenders. BTW a national consensus may have developed over Roe too?? In Atkins they clearly did NOT legislate but ruled that the 8th Amendment forbidding cruel and unusual punishment applies to a person who is so retarded he cannot differentiate right and wrong, moral or immoral, and that the national consensus was that killing a retard was wrong.

    I absolutely agree with those opinions, and like I said I’m not that conservative.

    Howard Veit (baba22)

  17. I am for making law if that is what it is.

    That sounds like a pretty clear answer from Howard to Patterico’s second question for him above.
    Seems like he deserves some points for honesty, at least.

    Steve Ely (7122a9)

  18. In Roper the state court set a 17 year old up by waiting til he was 18 so they could try him as an adult ruling that the Constitution prohibits the execution of a juvenile who was under 18 when he committed his crime.

    In Roper a 17 year old punk committed a murder for fun, and even bragged beforehand to his friends that he wouldn’t get executed because he was under 18. On what planet does that constitute the state setting him up?!

    This was backed up by another opinion that a national consensus had developed against the execution of those offenders.

    My copy of the Constitution doesn’t say anything about national consensuses trumping anything. There is a process for changing laws, and convincing a few unelected judges that there is a “national consensus” sure as hell ain’t one of them. Besides, as Justice Scalia aptly pointed out, there was no such consensus on this issue anyway; the states that had a death penalty were split right down the middle.

    Xrlq (428dfd)

  19. Suppose Miers is confirmed, and then eight months from now, Stevens retires for health reasons or (God forbid) dies, and Bush names J.M. Luttig to replace him.

    Will you still feel a rift between you and the president? Will it still take years to repair, as far as you and the president are concerned?

    Yup.

    Take Roe as an example. Do the math.

    Six minus zero, minus one, equals five. Five votes for Roe v. Wade.

    So if Bush had only nominated McConnell or Garza, he could have voted twice?

    I don’t understand your point at all. How is it Bush’s fault that Roe remains if all of Bush’s justices vote to overturn it?

    The premise of my argument was that Stevens retires and Bush nominates Luttig. Wouldn’t that make five votes to overturn Roe? Scalia, Thomas, Roberts, Miers, Luttig? Where do you get only four?

    Oh, I see: you are casually assuming, without explicitly saying so, that Miers will be the fifth vote to keep Roe.

    All right; this discussion is pointless. If you’re simply going to assume ex nihilio that Miers is a closet liberal and has just been fooling everybody, then of course there is nothing anybody can say — ever — to persuade you otherwise. She could rule hardline Scalia for ten years, and you will still be warning us that any second now, she will show her true colors and betray us all.

    And of course, Bush is a liberal; and Reagan was a liberal (or a dunce) because he appointed O’Connor, and….

    Dafydd

    [You actually make my point for me by mentioning Reagan and O’Connor. A president need not be a liberal to make a disastrous nomination. — Patterico]

    Dafydd (f8a7be)

  20. Howard, your conclusion that the federal judiciary in general or the Supreme Court in particular is such a great defender of individual freedom, is based on a skewed view that considers only cases that hold in favor of an individual and against the government. Why don’t you consider those cases in which the government wins, as well? And take a look at the dissenting opinions also, just to see how things might have turned out if a vote or two had gone the other way. I would suggest starting with Hamdi v. Rumsfeld. Don’t leave out Selling v. Young. Or Kyllo v. U.S. or Blakely v. Washington.

    Do you really prefer to leave your liberty in the hands of 9 unelected, life-tenured judges rather than legislators who have to re-apply for their jobs every few years?

    TNugent (6128b4)

  21. Oh, I see: you are casually assuming, without explicitly saying so, that Miers will be the fifth vote to keep Roe.

    And you’re casually assuming that she will vote to overturn Roe. This must clearly be based on:

    (1) Her years of opposition to…errr
    (2) Her courageous stand in the face of…well no
    (3) Her unflappable resilience as to…ummmm
    (4) Did we mention she goes to church?

    And of course, Bush is a liberal; and Reagan was a liberal (or a dunce) because he appointed O’Connor, and…

    Well, considering you’ve said that Miers IS Reagan and that rejecting her would put the war in jeopardy, uhhh, yeah. I’ll let the elipses do the talking…

    Christopher Cross (ee574f)

  22. Great stuff. Thank you. I think that an under-remarked weakness of Hewitt’s case is that it’s not “pro-Miers,” it’s “anti-anti Miers”– and he’s a fan. That should tell you something right there.

    More on my blog, if you’re interested.

    Patrick O'Hannigan (b9edf9)

  23. If Harriet is confirmed, one side in this debate is going to have enough “I told you so” sauce to cover their Thanksgiving potatoes for years and years.

    Bench (cc035f)

  24. I still want to know about Marbury.

    Al (00c56b)

  25. Bench,

    The “I told you so” for the anti-miers people will take a while to come about since part of the fear is that she will “grow” while on the bench and become as impressive a justice as Kennedy.

    The “confirm miers or GOP suffers” people can claim “I told you so” by 2006 or 2008.

    Christopher Cross (ee574f)

  26. Responding to Hugh Hewitt

    I know I promised Lucy that I wouldn’t post on Miers until there was substantive development. But this was too good to pass up. Hugh Hewitt asks those of us who oppose Harriet Miers nomination, and are not Democrats, a…

    Eric's Grumbles Before The Grave (1483fa)

  27. No either way the rift will take years to repair. The crowd that decided to sign a petition by a unhappy former speech writer employee of Miers, and then spend money for an ad campaign against the rest of the party, will blame Bush for losing the majority by 2008.

    Q: Need of reversal? I think the fight about Miers paints the picture. If you ask the man on the street what is wrong with our courts, they will say someone twisted the laws to such an extent that an average person can no longer understand why the courts rule as they do. Ask them and they will tell you the gov should not be able to take their property as #1.

    owl (3a528e)

  28. What is the objection to Lawrence v. Texas? Is it just that it struck down a State Legislative act or that it stretched the Due Process clause to do so or something else entirely. I’m not defending the decision. I’m just asking for your objections. Thanks.

    Craig R. Harnon (f906e3)

  29. Likewise, what objection to Miranda? Are we to assume that all suspects are/should be familiar with the fifth amendment’s protection against self-incrimination or is it just that it should not be the job of the police to inform him? Is it that the decision twists the meaning of the fifth preventing that a defendant not be forced to give evidence in a case at law (i. e., in a courtroom) or that failing to inform a suspect of the fifth amendment cannot possibly be interpreted as coersion to confess?

    Does your objection also extend to Escobedo v. Illinois?

    [I alluded to my position in an earlier comment and perhaps should do a post elaborating on it. In short, I dislike the categorical rule of exclusion. You could have your rights read to you 100 times and know them by heart, be read your right properly, give a wholly voluntary statement in response to custodial interrogation, corroborated by unshakable evidence — and if the cop forgets his Miranda card on the witness stand and misremembers the rights that he had properly read off of that card, the statement is out. I favor a totality of the circumstances test for voluntariness, with a valid Miranda waiver weighing heavily in favor of a finding of voluntariness. — P]

    Craig R. Harnon (f906e3)

  30. Have those of you who think Miranda is such a great idea seen the gigantic consent forms that police need to produce and explain every time they want to interrogate a suspect? – Clam

    Clam, when I hear “Miranda,” I just think of what the police have to read to the people they’re arresting. I really don’t have an opinion on the consent forms. But when there is talk of a “reversal” of Miranda without a qualification, I naturally thought that Patterico meant that he wanted to throw the whole ruling out the window.

    [I do. But cops can still read people their rights if they’re worried about a court finding the confession involuntary. In the meantime, of course, Miranda is the law, and I of course will follow it. — Patterico]

    Tillman (1cf529)

  31. […] Other bloggers answer the same questions: Patterico, Protein Wisdom, Q and O. by Tom Dunson , Wednesday 26 October 2005 at 9:01 pm […]

    The Trigger » Taking on Hewitt’s Questions (e72e64)

  32. Howard:

    I won’t continue this sagging saga except to say that they filed 34 charges of resisting arrest against me, all of which vanished into thin air because they didn’t “Mirandize” me.

    You misunderstand something, or you’re misreporting it. Failing to Mirandize you prevents the statements you made after you were in custody from being introduced against you. That’s all. It doesn’t prevent you from being charged, tried, or convicted based on any other evidence.

    As for the cases to overturn, I would have gone with cases like Wickard, and Garcia v. San Antonio Metro Transit, myself, but then, I guess that’s why I’m a libertarian rather than a conservative. I think Miranda is bad jurisprudence, but its effects are ultimately so trivial that it certainly wouldn’t be anywhere near the top of my list. It isn’t going to affect anybody’s daily life whether Miranda is overturned, whereas restricting the power of the federal government will do real good.

    David Nieporent (7a0031)

  33. Mr. Patterico has offered to debate me regarding the statements I have made about two of the cases included in his post; Roper v. Simmons (banning execution of juveniles) and Atkins v. Virginia (banning execution of the retarded). The debate to take place on either my blog or his. He also questions Miranda having a role in my police roust escapade. I appreciate his graciousness and wish I had to tools to debate the law as he suggests.

    1. I ain’t a lawyer and am not schooled enough in the trade to debate a person trained in the law. All I can say is that I’m glad that we are not allowed to slaughter the retarded and pot shot the very young; if that is activism from the bench, then I approve of it. I have a “real job” in the investment field and just don’t have the time to do the scholarship involved in order to debate you the way somebody ought to debate you. Putting myself up against you in a debate would be the same as daring to shoot it out with Billy the Kid if he called me out on the street; The Kid is a professional gun slinger and would kill me. I’d be crazy to take him up on his challenge just to save my “manhood,” which would be lying in the street full of hot lead. Similarly, you would take me out unless I had the time to prepare, which I do not.

    2. Regarding Miranda in my case: I immediately hired a lawyer and he bombarded the court with “discovery requests” and included a request for the reading of Miranda before they questioned me after arresting me. The reason for Miranda was that during the time of my “grilling” I was rude as hell as one can imagine, calling the main cop just about every name you can think of. It was my “threating” language that was to be the basis of the 34 charges of resisting arrest, but they had NOT “Mirandized” me and the DA refused to prosecute based on that failure. Now it’s probably true that once the DA’s office got hit with the discovery requests they found that the cops had behaved in a usual LAPD way, which is illegally, and dropped the 34 resisting arrest charges. When I showed up in court for my first hearing on the charges the judge looked at us and informed us that all charges had been withdrawn. My entire record had been expunged. The “crimes” for which I was accused happened in the police station after my arrest and booking, and since the cops claimed “cause” for my original arrest on the street they had to Mirandize me before continuing with their “questioning.”

    So based on my experience there and another one I had later, I support Miranda in every way because my exposure to the reality of the legal system tells me that the cops have no problem stomping on the rights of anyone they go after, if and when they can. After a century of police abuse–see the old movies where they routinely beat prisoners—they Goddam well should have forms to fill out.

    I appreciate the offer of a fair fight Billy, but I left my guns at home.

    I’m posting this on my blog as well

    Howard Veit (baba22)


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