Hugh Hewitt Praises Reagan’s Decision to Nominate O’Connor
Hugh Hewitt is letting his vacation-inspired fatigue show with this argument:
Some anti-Miers writers have argued that it is always wrong to take gender into account when a president nominates for SCOTUS. To which I reply: That’s not what Ronald Reagan thought.
Come on, Hugh! You’re defending the O’Connor nomination because Ronald Reagan made it? O’Connor, who gave us Casey and the continuation of Roe? Who gave us Grutter, and who approved an unconstitutional campaign finance reform law?
That doesn’t bode well for your argument that we should defend the Harriet Miers nomination because President Bush made it.
Paul at Power Line is more polite:
But Reagan’s decision to take gender into account resulted in the nomination of Sandra Day O’Connor when he might have done so much better. And if Ronald Reagan could mess up a nomination due in part to gender discrimination, so too can President Bush.
Indeed.
UPDATE: Paul Zummo at Don’tConfirmHer.com does a far more thorough takedown of Hewitt’s post. (Via Professor Bainbridge.)
UPDATE x2 AND BUMP: Further down the post, Hugh reassures us with this lovely possibility:
There might be another vacancy in the summer of 2006, when a Luttig or a McConnell or, yes, a Gonzales would be nominated and the ensuing debate would frame the vote in November.
See? If we sit still for Miers, we’ll get her — and maybe Alberto Gonzales down the road, too! A Supreme Court with both of them! What could be better? And Hugh (and Beldar) will be telling us to support his nomination, too.
I’m bumping this post to the top, so that everybody can see what a successful Miers nomination means: we have to sit still for absolutely anything the President throws at us in the future. Anything.
Hugh’s post is problematic for more reasons that that one, he also falls back on the “maybe Con Law IS hard” line:
This is like a whole new level of sophistry that doesn’t even fit within the normal bounds…it’s like…a super-duper-sophistry. Call it Hughistry, if you will.
Christopher Cross (77eaf3) — 10/24/2005 @ 10:26 pmI like Hugh. But he’s lapsing into self parody now.
Jeff G (302dff) — 10/24/2005 @ 10:49 pmHugh Hewitt v. Paul Zummo
Here is a seriously long but interesting article by Hewitt, and subsequent parsing and rebutting by Zummo. (H/T: Bainbridge)
Myopic Zeal (739a0c) — 10/25/2005 @ 5:51 amI’m not even going to try to summarize. Hewitt is defending Miers’ nomination, Zummo at ConfirmThem thinks hi…
My favorite part of Hugh’s post was the implied speculation that the administration was using a strategy of “lowering expectations” for Miers, presumably so that she would then wow everyone in the hearings with her marginal competence. Yeah, that’s right, musn’t take a chance that everyone’s unrealistically high expectations for Miers’ performance will somehow hurt her chances.
I sure wouldn’t want to be the poor sap charged with the duty of actually making expectations for her any lower than they are now.
Levans (31266c) — 10/25/2005 @ 7:07 amPatterico, a while ago you wrote a “let’s not be disrespectful to Hugh” post, directed at those who reacted harshly to his silly “just trust the President” argument. And although I thought Hugh deserved to hear tough criticism, I agreed with your comments. But since then, Hugh has managed to earn all the derision that’s been heaped upon him. By persistently offering astoundingly bad arguments to justify the Miers pick, he has so badly damaged his own credibility that he can no longer be taken seriously on the issue of judicial appointments.
Just when it seemed that he was scraping the bottom of the “just trust him” barrel, he digs still deeper with the completely lame argument that Reagan thought gender based quotas were ok, so W should get a pass for nominating Miers because she’s a woman. Even if he thinks we’ll buy the garbage that is his justification for sex-based discrimination, does Hugh really think we’ve forgotten that Janice Rogers Brown, Priscilla Owen and Edith Brown, among a few others, are also women?
To be fair, the Reagan-did-it-so-W-should-be-able-to-also line isn’t really very prominent in Hugh’s argument, which is not so much a defense of Miers, but of the President. But that doesn’t help Hugh’s case much. Hugh thinks that a split among conservatives over the Miers nomination increases the Dems chances in ’06 and ’08, and that the problem is even bigger if the President loses this fight. But Hugh needs to take a step back and recall who started the fight. It wasn’t us, it was W, by taking the unprecedented action of nominating his own lawyer to the Court, violating not just one, but two or perhaps even three of the four admonitions given by Hamilton in Federalist #76 – for those who haven’t read it lately, Hamilton thought that the Senate’s role of advise and consent would operate as “an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity.”
It takes a pretty determined Republican partisan — and I’m one, especially given the state of the Democratic party these days — to conclude that a Republican President who would make this pick is better than a Democrat alternative. But we didn’t sign up to follow a President who would be only marginally better than the other guy, we signed up to follow a President who promised the sort of leadership that could re-start the process of restoring federalism at home and strength and honor abroad. Hugh is correct that weakening the Presidency threatens those projects, but he’s just dead wrong on both the cause of the problem and the action needed to correct it.
If this one gets to the Senate floor, the President will be damaged, win or lose, and that damage will carry over to the next administration. And it’s not just the President that will be damaged. If you thought the inane questions from Ted Kennedy and Diane Feinstein were as bad as it gets, this will be worse, and it will be still worse when the next vacancy on the Court needs to be filled, regardless of which party controls the White House. All of the repair done to that process by the Roberts appointment will be undone, and then some. The framers designed a pretty good system, but even the best made machine can be ruined if the operators are idiots. The President should pull the plug now. If he doesn’t, or for some reason feels he can’t, then the Republicans on the SJC need to come to his rescue and send Miers back to the White House, rather than to the Senate Floor.
TNugent (6128b4) — 10/25/2005 @ 7:53 amThis passage from Hewitt’s “jet lag” post made me laugh:
I’d been laboring under the assumption that Andy McCarthy and Patterico are both practicing lawyers. Apparently not, though, as their opinions on Miers don’t seem to differ markedly from George Will’s or Charles Krauthammer’s. Learn something new every day, I guess.
Incidentally, this —
— is precisely the right inference. And not just in the realm of judicial nominations, I’d imagine. As I said the other day in a comment on Jeff’s blog, one wonders at this point how Hugh would respond to Bush immediately withdrawing U.S. forces from Iraq. I suspect he’d defend the decision, for the same reason he gave when responding to Bill Kristol re: Miers earlier this week: “This is a powerful argument, but it depends ultimately on political judgment, which depends ultimately on facts which most of us do not have access to.”
In other words, since the White House is the only party with knowledge of all the facts, it simply can’t be criticized intelligently. Draw your own conclusions about how far this logic might extend.
Allah (cc4e8d) — 10/25/2005 @ 7:53 amFurther to my previous comment, since it appears that practitioners are much better qualified than the rest of us to judge Miers’s qualifications, someone remind me: which law firm did Bush practice with?
Allah (cc4e8d) — 10/25/2005 @ 9:20 amI have sat first chair through about 40 trials, though none have been particularly lengthy — the longest was maybe two to two and one-half weeks. I have argued complicated motions on short notice, several times. I have taken depositions, though none lasting longer than a day, that I recall. I have never negotiated a huge partnership through an annual points redistribution, though I’m not sure what that has to do with my qualifications to comment on the Miers nomination.
Patterico (ddf04a) — 10/25/2005 @ 9:33 amI’m a member of the bar myself, although I only practiced for a few years and only did transactional work.
I guess that means I’m half-qualified to opine on Miers.
Allah (cc4e8d) — 10/25/2005 @ 9:42 amIf I’m not qualified to opine on the Miers nomination, then I’m not qualified to contribute funds or vote for politicians who support her nomination either.
Black Jack (ee9fe2) — 10/25/2005 @ 10:07 am"When I want your opinion, I'll give it to you!"
Hugh Hewitt on Miers' critics and criticism:The majority of commentators who are not lawyers -- there are many -- are simply not equipped to judge Harriet Miers's competence. Mark Levin is a big exception. As is Judge Bork. Bu…
protein wisdom (c0db44) — 10/25/2005 @ 10:41 amIf you don’t think a capable lawyer can be a Justice – too complicated for mere mortals? – then why would you attack HH for saying commentators are not equipped to judge HM?
Same args, just change the variable names. If a reasonably intelligent citizen can form an opinion of a nominee, then a reasonably intelligent lawyer can be one.
ras (f9de13) — 10/25/2005 @ 11:39 amIf I played professional baseball, I’d likely hit worse than the Mendoza line. That doesn’t mean I can’t call people that hit like Mendoza bad hitters or form a reasonably intelligent opinion re same.
Christopher Cross (ee574f) — 10/25/2005 @ 12:07 pmIf a reasonably intelligent citizen can form an opinion of a nominee, then a reasonably intelligent lawyer can be one.
Just totally disagree. I think I can intelligently assess the capacity of someone to be a President, a Supreme Court Justice, or (as Chris Cross notes) a baseball player. But I wouldn’t qualify for any of them.
Yet Hewitt thinks you can’t assess their abilities without qualifying for the position. Taking Chris’s argument, it’s like saying: anyone can be a ball player. But you can’t criticize Mendoza unless you yourself can hit as well.
Parallel logic doesn’t always work.
Patterico (a86064) — 10/25/2005 @ 12:11 pmPatrick,
Parallel logic doesn’t always work.
Not always. But sometimes.
On a different tack, I think we’ll learn something important from the way the committee votes on HM: i.e. whether or not the Dems see her as another O’Connor.
If their original recommendation of HM was simply a blooper on their part, then they’ll reverse themselves in committee and try to slow her down.
If, otoh, they originally recommended her cuz she’s truly the best squishy compromise they can get, then they won’t let a little thing like a mediocre committee hearing stop her, and they’ll pass her on to the full senate easily, lest they encourage a more conservative replacement.
[I suppose it’s possible they could continue a bluff even thru committee, but they’d be making it awfully tough to stop her at all if they sent her fw with a reaffirmed recommendation that late in the game]
ras (f9de13) — 10/25/2005 @ 3:38 pmHewitt’s piece is seriously flawed, as others have already noted. I have only a narrow point, in response to Hewitt’s line to the effect that “Reagan took gender into account [in choosing SDOC], so W is well within his rights to do so.” Yes, Reagan fulfilled a campaign pledge in naming the first woman to the Supreme Court, but as Patterico and Paul Meringoff pointed out, that pledge severely limited his choices. His advisers had strongly pushed Robert Bork as the nominee; in the aftermath of Reagan’s election and the GOP takeover of the Senate, Bork would have been confirmed.
At the time of the O’Connor nomination, there weren’t enough Republican women on the federal bench to give Reagan a decent choice of strong female lawyers. After 8 years of Reagan, and 4 of the first President Bush, that was no longer true.
Hewitt contends that we have no way of knowing whether Edith Jones (or Luttig or McConnell) could be confirmed in the present Senate, and that we should accept the WH’s determination that a “stealth” candidate was the only way to go. But John Fund’s WSJ piece yesterday (10/24) suggested that all other plausible female nominees fell by the wayside in the course of the “vetting” process. He identifies Jones, Priscilla Owen, Janice Rogers Brown and Alice Batchelder by name as having been eliminated either by political rivals or by senators worried about difficult confirmations. He also says that another federal judge “was nixed by a powerful senator over a judicial opinion that would have been attacked by feminists.” This is likely Karen Williams of the 4th Circuit. (Was it Dianne Feinstein who did her in? So much for sisterhood.) Finally, “[o]ne potential nominee [Diane Sykes of the 7th Circuit?] wanted the White House to know she had some family problems that could bear on the selection process but she did not withdraw her name.” One by one, all the best choices (I assume that only women were in the mix this time around) were deemed unacceptable. How can this be?
After nearly a quarter of a century — two-thirds of it under Republican presidents, who have named plenty of conservative women to the federal bench — it defies credibility that this president has to name his former personal attorney and current White House Counsel in order to replace SDOC with another woman. He has far more solid choices available to him than Reagan did.
gary (39ae96) — 10/25/2005 @ 4:28 pmSusan Estrich is defending Miers.
Susan. Estrich.
Let that sink in.
Jeff G (302dff) — 10/25/2005 @ 7:38 pmWow!
Hewitt PRAISING Regan?
Why that’s just amazing!
Stop the presses … now that IS news.
I’m surprised he hasn’t taken up permanent residence in the Regan Mausoleum.
Barry (d3b506) — 10/26/2005 @ 2:09 pm