Publius' Forum

With this Miers fiasco finally behind us, I want to log in my feelings on what happened. I am going to use the support of Miers by writer and radio host, Hugh Hewitt, to demonstrate my evolution from a guarded support of Miers to being against her nomination. Hugh is a perfect foil for this because it was Hugh that actually helped me make the switch, even as he was attempting to do the opposite.

I like Hugh Hewitt's radio show. He has some incredible experience what with having been in government, being a constitutional lawyer, a professor, a daily blogger and Editorialist for several outlets as well as a talk show host. He is one of those people that one looks at and wonders where he gets the time to do all these things he does, time that the rest of us never seem to find.

However ... (didn't you just know a "however" was a'commin?)

At first, I did want to take Hugh's advice on this Miers issue. After all, a President has the guaranteed right to nominate anyone he wants to nominate to the SCOTUS. And further, I, too, felt a wiff of elitism coming from Miers' denigrators when this all began. But as each day moved forward and as each morsel of new info about Miers came out, I found Hugh more and more off base with his support of this nomination. As each day went on with Hugh's attempts to support her nomination, his ability to convince got weaker and weaker as the growing resistance mounted its successful efforts.

And he was just plain wrong about the entire Harriet Miers story when it was all said and done, too. He is so sure that this whole fiasco, and fiasco it was, is the death knell of both the Bush administration and the conservative movement. He is also sure that this means that the conservatives have assured the end of the non-politicized court. He is wrong on most counts, as far as I am concerned.

I will not stoop to the claim that he is somehow so blindly loyal to the Bush administration that he will say or do anything in support. Though I am sure his past White House experience lends him toward giving a GOP administration a little more leeway than many other pundits might. But, I don't want to dismiss his opinions as unconsidered spin especially with his thorough knowledge of the law.

And he is right in a few things that he contends. We absolutely have made appointments to the court far more political than it need or should be. But, it isn't the conservatives that are doing it, by and large, but the left, Miers not-with-standing. The left created "Borking" and have sustained it ever since and it is a process carried on by politicians, not the public. But, with Hugh claiming the right "Borked" Miers, we are seeing a glimpse of his worst hyperbole.

Yes, a very few conservative pundits went over the top in their condemnation of the Miers candidacy. I am sure a few radio hosts took things too far, too. But Borking is something Political Parties do to candidates and this did not happen. Still Hewitt has claimed that this is what happened to Miers. It just isn't true.

First of all, we absolutely cannot muzzle opinion just because a president made a nomination. Additionally, the Party faithful are wholly obligated to tell their leaders what they want and Miers did not fit that bill. That is exactly what happened here. Bush made an appointment that did not satisfy his base nor did it seem to jive with his claims of placing solid constructionists on the court.

Further, I would say that another radio personality is more right about the supposed crack-up of the right than is Hugh. Rush Limbaugh says this shows the strength of the conservative movement whereas Hugh thinks we are shooting ourselves in the foot. I think Rush is more right than is Hugh. The base asserted their opinion on the kind of nominee they wanted and they had not only the right but the obligation to speak up. Their opinion won the day in the field of debate and this is a good thing.

Also, we DO need a litmus test of sorts for court nominees on the right at this time. We have already ruined the court with politics and we absolutely must place enough judges in place that will reverse this trend now before the proper role of the courts is utterly irretrievable. If we do not do so, we cannot regain the proper role of the courts if we sit idly by and allow the left to control the process.

I'd have to say that the most obvious proof, if proof can be had, that Hugh went over the top in his support of the Miers nomination was when he made a brief negative aside on his radio show (last Monday, I think) that it was just "internet pundits" that doomed Meirs. This is amusing in that Hugh is the biggest supporter of "internet pundits" with his championing of Bloggers. He was dangerously close to saying that "internet pundits" should only be acceptable if they AGREE with him!

Now, I will agree with him. Yes we have made the courts far more a political football than it should be. Yes we risk making the courts assume a role they should not have (and who doesn' believe it has already happened?). I must also agree that the Supreme Court has never been a place to which we nominate only the "smartest" or most well "educated" elits. Not to say that it isn't an important position and that we shouldn't strive to put well educated people with solid experience on the courts but the court was never supposed to be a place where only the literatti were to be placed. We have had many Justices who were not necessarily the cream of the crop, the most elite. The idea that only the most elite should be allowed to attain SCOTUS appointments runs contrary to our culture of being able to achieve greatness from humbleness.

Of course, I am not saying we should be appointing ditch diggers to the SCOTUS, but to assume that only the most elite can get there is the other end of that spectrum that we must avoid. We must leave room on the high courts for people who may not fit the mold of the elite classes let we so distance our courts from the "common man" that they are unable to rule with that in mind.

Furthermore, we should try not to make a habit of torpedoing candidates before they even get a hearing, to be sure. There Hugh is more than right.

In any case, I think Hugh got himself in a pickle with his support of Meirs. And I think he just went down the wrong track to save face. He isn't stupid and he wasn't insincere. He was just wrong.

Warner Todd Huston