Take The Week-end Off, Hugh

Hugh Hewitt continues his rearguard defense of the now dead Miers nomination, and writes:

Everyone can say it isn’t raining where they live, but that doesn’t mean it isn’t raining in a lot of places. Professor Adler needs to go back to The Corner’s archive, to October 3, and start reading. (I can’t find the Caligula’s horse post, but there are plenty of others that will make my point if he will simply read.) ConfirmThem.com has plenty of similar evidence. There is much in the way of responsible analysis, of course, and there is a reality that this week’s publication of speeches which is cover for a lot of the neoBorking that happened prior to their publication.

But no fair reader who actually reviews what was written, said, and done over the past three-plus weeks will deny the neoBorking that occured. It just isn’t possible to do so.

As for Matt Anderson’s question: A defeat on the Senate floor would have been painful, but also a constitutional result with many upisde as clarity about who believes what is almost always a plus in a republic.

Let’s get a couple of things straight here, before Hugh has his readers everywhere disseminating this nonsense.

1.) Harriet Miers was the least qualified nominee to the Supreme Court in decades and would, by a great deal, have been the least qualified sitting Justice had she been confirmed. She was less qualified than most in the large pool of great legal minds who could have been possible O’Connor replacements.

That doesn’t mean she isn’t a nice, fine woman, and a great attorney, but it does put her somewhere below the cream of the crop as far as qualifications. It is not sexist or elitist to note that. In a society that pretends to reward merit, wanting the best qualified and most experienced to be the nominee should be the goal.

2.) The first Caligula reference was by Richard Brookhiser, here at NRO, on Monday, 3 October 2005:

THE GOOD NEWS ON MIERS [Rick Brookhiser]

It’s not as bad as Caligula putting his horse in the Senate. Posted at 03:55 PM

Once again, Hugh is missing the point. While he chooses to pretend this comment is all about Harriet Miers, the reality is that this comment is a slap at President Bush (and given Hugh’s sycophancy, it is hard to tell which would offend him more).

The Brookhiser remark was not to compare Miers to a horse- of course that would be stupid and unfair. Miers is a distinguished and decent attorney who has had a very successful career. The point was to compare the arrogance and hubris of President Bush, who was acting like Caligula. There was deserved and real dismay about this obvious cronyism. Ask yourself- how would Hugh feel if Bill Clinton nominated Cheryl Mills?

Three weeks later, Blanton at Red State made a reference to Incitatus (Caligula’s horse):

While Hugh should be applauded for unfailingly supporting the administration, pardon the rest of us if we do not want to go along. Thus far, Hugh has managed to cast aspersions on arguments George Will, Judge Bork, and most of National Review. While I can certainly give credence to the idea that we should wait for the hearings to make up our minds, Hugh has gone beyond that and in so doing has lost credibility on the subject.

Were Hugh Hewitt in Rome, he’d have been the first in line to champion Incitatus for the Senate.

This is after three weeks of listeing to Hugh tell us to shut up and ‘trust’ Bush, to sit back and be quiet, and to not react. The comment was not designed to compare Miers to a horse, but to tweak Hugh for his sycophancy. Apparently it worked.

3.) Hugh is a bright guy, and knows what happened to Bork. His writings and positions were wildly distorted, and he was the subject of withering attacks before ultimately being defeated in a full vote in the Senate. That is not what happened to Miers.

In the Miers case, everything that was charged about Miers turned out to be TRUE. She has no experience in Con Law, she was enmeshed in a land scandal, she did write sycophantic letters to Bush, she DID give the 93 speech, she was having troubles with the murder boards, she did fill out her questionnaire to the Senate so incompletely that Senators on both sides of the aisle were demanding she re-do them (and then failed to re-do them on time), she did have no paper trail (and what trail she had, they were refusing to release), her writing was muddled and fractured, she was not impressing Senators in personal meetings, and so on and so forth.

Far from being Borked, what happened was that the real Harriett Miers was exposed- a nice woman, a fine attorney, but not of the material required to be on the Supreme Court.

4.) Hugh writes: “A defeat on the Senate floor would have been painful, but also a constitutional result with many upside as clarity about who believes what is almost always a plus in a republic.”

There was not going to be a defeat on the Senate floor. She was not going to get out of committee, and she was going to humiliate everyone in the process. And that is what Senators were relaying to the White House all week.

As to Hugh’s suggestion that this was somehow an ‘unconstitutional’ result, I would suggest Hugh doesn’t know what is in the Constitution if he thinks anything unconstitutional happened. The President nominated Miers. It became clear that she was unqualified and would not pass a vote. She withdrew her name from consideration. I will leave it to Hugh to demonstrate how this is a violation of either principle, precedence, Senate Rules, or the Constitution. Good luck with that, Hugh.

In short, Hewitt is simply lashing out at people who chose not to ‘trust’ the President to the degree that Hugh did. His charges have no merit, and his animosity is carelessly targeted. If he wants to be mad at anyone, it shouldn’t be the people who pointed out the flaws in this candidate. Perhaps after he cools down, Hugh will stop tilting at windmills and recognize that the person he should be mad at is Bush, who made this flawed nomination in the first place, putting his allies and poor Harriet Miers in an unfortunate position.






38 replies
  1. 1
    Sojourner says:

    Differentiating Miers from other failed nominees does not require the re-writing of history. It is clearly different on its own merits. Therefore, this statement was both inaccurate and unnecessary:

    Hugh is a bright guy, and knows what happened to Bork. His writings and positions were wildly distorted, and he was the subject of withering attacks before ultimately being defeated in afull vote in the Senate.

    Bork’s writings and positions were not wildly distorted. The reality is that everytime he appears on tv or writes a book or article, he demonstrates again why he was a poor choice for the court. He is, quite simply, a belligerant and angry crank who wants to decide for others what constitutes acceptable behavior. He was not a good choice for America and, thankfully, he was rejected.

  2. 2
    ppGaz says:

    He is, quite simply, a belligerant and angry crank who wants to decide for others what constitutes acceptable behavior

    Well stated.

    Or, in other words, he’s a Republican.

  3. 3
    John Cole says:

    PPGAZ- Do you rush to queer every thread?

  4. 4
    demimondian says:

    I dunno, John. I agree with Sojourner about Bork — with the exception of the nauseating NPR piece on his video rental habits, I don’t think that his record or writings really were distorted. He _did_ write against many of the core Civil Rights actions over the years. He _did_ write against the right to privacy. (I mean, c’mon? Overturn _Griswold_? That’s repulsive.) And he _did_, publicly, argue that _Roe_ should be overturned. Three years later, O’Conner wrote the decision in _Casey_, and, point by point, demolished Robert Bork’s arguments.

    Robert Bork went into his hearings ahead, and left behind. That tells the whole story in a nutshell.

  5. 5
    Lines says:

    How is that queering the thread? I doubt people are going to go after ppGaz for his statement, as it appears to be made in jest and not meant to provoke a largely angry response from a pitchfork wielding mob.

    And you give Darrell like qualities to ppGaz for even making the assumtion he can queer a thread here. That takes SuperIgnoramus level posts, and for that only one character can step up to the plate.

  6. 6
    SomeCallMeTim says:

    His writings and positions were wildly distorted, and he was the subject of withering attacks before ultimately being defeated in a full vote in the Senate

    I’m roughly with Sojourner. If you have an argument about how Bork’s views were distorted, let’s hear it. (And don’t feel obliged to defend his actions as legal toady to the Nixon Administration; we’ll let that pass for the moment.)

  7. 7
    Jay C says:

    Just as an aside, why does anyone even BOTHER to read or listen to Hugh Hewitt? He’s still at it – day-late/dollar-short as usual, in today’s NY Times – rabbiting on about the Miers debacle. If it didn’t sound so fundamentally inane, I would almost believe that this really IS an example of the Times running foolish Op-Eds by “noted conservatives” just in order to make them look bad.
    What, Jonah Goldberg was busy?

  8. 8
    srv says:

    I for one welcome the republican-on-republican conflict for the remainder of this administration. Hopefully the other side will follow suit.

  9. 9
    John Cole says:

    Oh for goodness sakes- Bork’s views were wildly distorted:

    “Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, children could not be taught about evolution.”

  10. 10
    Lines says:

    Link to that, John?

    If it was from someone that mattered, well, then you have a point. If it was from some back woods publication or blog, then you just don’t have much of a point. Its not like everything isn’t exaggerated by those with a small voice and a big opinion.

    Bork, essentially, was not a good pick. He would have been a horrible Justice and his meltdowns after offer only more proof.

    Good riddance to more bad far right-wing rubbish

  11. 11
    Another Jeff says:

    If it was from someone that mattered,

    It was from Ted Kennedy.

  12. 12
    John Cole says:

    That was Ted Kennedy on the floor of the Senate. Google it.

  13. 13
    Lines says:

    Ah, well then its spot on!

    Joking aside, it is an extreme exaggeration, but nothing I wouldn’t expect from a Kennedy, after their whole lives have been nothing but exaggerations and out-of-touch commentary.

    After all, it would have only taken a rightly placed arrest of Bork for the wrongful firing of Cox as Obstruction of Justice. Why that wasn’t done, I just don’t understand. He may have been acting on orders, but when your 2 superiors resigned rather than carry out those exact orders, you pretty much understand this isn’t worth doing. Bork’s judgement was colored by his political ambitions.

    Besides, who in their right mind would think that anti-trust laws are evil and that huge corporate mergers were 100% good for the consumer?

  14. 14
    Jack Roy says:

    In the Miers case, everything that was charged about Miers turned out to be TRUE.

    True, schmue, you sexist!

    And, you know, not for nothing, but as much as the process may have been disappointing, Bork got exactly what he deserved. Politics gets dirty sometimes, but if you’re the guy who pulled the trigger on the Saturday Night Massacre, you don’t get to complain about what’s fair and what’s unfair. It’s an ancient legal doctrine of evidence called estoppel by being an asshole.

  15. 15
    demimondian says:

    “Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, children could not be taught about evolution.”

    Yup. The problem here is Kennedy saying exactly what I said in my posting above, except in much more colorful language. You can either refute my claims about Bork’s own writings — it’s certainly possible I’m wrong — or acknowledge that Bork really did advocate a Constitutional interpretation in which blacks would still be sitting at “separate but equal” lunch counters, in which the vast majority of American women would not have access to abortions, and in which states would have the power to forbid the teaching of evolution…like Kansas is trying to do *right now*, remember.

  16. 16
    demimondian says:

    Besides, who in their right mind would think that anti-trust laws are evil and that huge corporate mergers were 100% good for the consumer?

    Not Robert Bork, anyway. He strongly supported the United States during _US v. Microsoft_, for instance, and later advocated for more extensive sanctions in the EC.

  17. 17
    Jack Roy says:

    Lines, you’re a little off base. First, “I don’t like what the Kennedy family has done” is a common sentiment, and a respectable one to boot, if overly simplistic. Saying of the Kennedys, on the other hand, that “their whole lives have been nothing but exaggerations and out-of-touch commentary” is political discourse on the level usually reserved for the borderline retarded, and barely lucid.

    And as for Bork’s comment on anti-trust, it’s a well-regarded and much-cited classic. Meaning I haven’t read it and can’t defend it, but I’d be deeply surprised if your characterization of Mr. Bork’s opinion of antitrust (his subtitle was “a policy at war with itself,” not “evil”) is terribly fair to the man.

  18. 18
    Lines says:

    The Antitrust Paradox, a book in which he argued that consumers were often beneficiaries of corporate mergers, and that many then-current readings of the antitrust laws were economically irrational and hurt consumers. Bork’s writings on antitrust law, along with those of Richard Posner and other law and economics thinkers, were heavily influential in causing a shift in the U.S. Supreme Court’s approach to antitrust laws since the 1970s.

    Ok, so I forgot he’s changed his stripes since his Borking.

  19. 19
    MikeyC says:

    I agree with the posters above… Bork was NOT given an unfair shake (and was definitely not “Borked”, as the current right-wing uses the term today). He was given the chance to explain his views at length in his hearings, and the majority of the Senate found them unacceptable to be sitting on the Supreme Court.

    Everytime I read any of his editorials on current events, I’m reminded of how good a decision that was. The guy may be brilliant, but he definitely is a bitter nutjob!

  20. 20
    Lines says:

    Jack, I believe the Kennedys have given up a normal life, doing normal things that people get to do, like “work” in order to serve their country, and I don’t mean to play that sacrifice down. I LIKE his commentary, I just feel that sometimes he goes over and beyond what is required because he really doesn’t live in the same reality as the rest of America. He lives for exaggeration, and on Capital Hill thats usually ok, but in the real world he’d be seen the same as the guy screaming at lightpoles.

    I just see Bork as a man that is politically tied to his own beliefs. Moving with the breeze of money just makes him more of a whore rather than a Justice.

  21. 21
    Steve says:

    Nah, Bork was no extremist. He only believed that paper money was unconstitutional.

    Denying that a right to privacy exists has real-world consequences. Back-alley abortions are one of them. Having the government interfere with your most personal life and death decisions is another. Kennedy’s rhetoric was obviously over the top, but it’s not the gross distortion of Bork’s record that revisionism has made it out to be. Bork was, quite simply, a very well-qualified, very far-right judge. A Republican majority wouldn’t want to confirm the liberal equivalent of Bork, either. (Someone invariably brings up Ruth Bader Ginsburg at this point. Just give that one up in advance.)

    The most humorous thing about the allegation that Miers was “Borked,” of course, is the fact that Bork himself participated. There was nothing factually unfair about the criticisms of Miers, and in fact, the conservative blogosphere went out of its way to correct some statements that went a little too far.

  22. 22
    demimondian says:

    The Antitrust Paradox, a book in which he argued that consumers were often beneficiaries of corporate mergers, and that many then-current readings of the antitrust laws were economically irrational and hurt consumers. Bork’s writings on antitrust law, along with those of Richard Posner and other law and economics thinkers, were heavily influential in causing a shift in the U.S. Supreme Court’s approach to antitrust laws since the 1970s.

    He hasn’t changed his stripes. In fact, he’s been very consistent — it’s the rest of the world that’s changed.

    The core argument in _The Antitrust Paradox_ is that if companies are to compete, they must improve their products and/or their processes and that consumers almost always benefit when that happens. The classical readings of _Sherman_ had always been that it had to protect competitors to protect competition and, more importantly, comsumers. Bork argued, persuasively, that no such reading was necessary — that abuses could still be reined in without propping up firms that were making inferior and/or uncompetitive products. That’s exactly what happened in _US v. Microsoft_, fifteen years later.

    (Yes, I worked here during The Trial. Yes, I thought that Microsoft was on the wrong side of Sherman at that time. No, I didn’t make friends with that view. Conversely, the eventual settlement is very much like the description of what I expected the eventual outcome to be — I sent an e-mail to several friends about it on the day the company was formally cited, and was spot on. The fact that I think the right solution came out in the end has not made me friends among my political acquaintences.)

  23. 23
    Lines says:

    Demi: I bow to your superior knowledge. Thank you for taking the time, that was very educational, actually.

  24. 24
    Dusty says:

    Just a quickie regarding the first ‘graph of your response in item 4) … my understanding is that the committee is required to send any SCOTUS nominee to the floor regardless of their vote.

  25. 25
    RA says:

    I was a Miers supporter because I didn’t believe Bush could have misread her over 15 years. But it is pretty scary with all these RINO’s and liberal Democrats shedding tears over her. What do they know that I don’t?

    I believe the RINO’s don’t like it because if Bush appoints a real conservative they will have to vote on banning the filibuster and the spinless liberals don’t want to do that.

  26. 26
    washerdreyer says:

    Richard Epstein, who is as textualist as they come, and supported Bork at the time, thinks that his work since then indicates that he would not have been a good justice (or a good originalist, for that matter), and that it’s a good thing he wasn’t confirmed. I can’t provide a cite for this because he said it at a panel discussion I was at. None of this goes towards whether or not his views were distorted at the time, which I don’t really know about. It does seem clear that he was voted down for believing the things which he actually believed, not only things he was purported to believe.

    RA – If you want to see Senate rules amended to forbid all filibusters, that’d be great. It’s stupid to only eliminate filibusters of judicial nominations, and it’s insane to claim that such filibusters are unconstitutional, as Bill Frist repeatedly did.

  27. 27
    scs says:

    Apparently Miers didn’t impress the senate with her interviews and questionaire. I wasn’t privy to either one, so I can’t personally judge them. But were they REALLY that bad, or was there some sort of subconscious effort to not like them because of all the GOP fuss and suspicion of her Roe vote? That will be an unanswered question for me because the propaganda was SO bad when she was first announced that all manner of objectivity towards her was destroyed. People, even senators, tend to jump on the group think bandwagon and at a certain point it is difficult to separate perception from reality.

    Maybe she was that bad, and that is fine by me for senators to disprove her nomination after they get knowledge about her. But that doesn’t excuse anyone for a second. The point is she was judged from DAY 1 as unqualified. And as a top political lawyer involved in all the top legal political and constitutional issues of the day for the last 10 years, that is just laughable to me. Not only is it laughable to me, but it was ridiculous to Greta Van Susteran and Bob Abrams on their TV shows as well, two top non-partisan lawyers in their field. I trust them over pundits and bloggers.

    Then the argument shifted to “well she wasn’t the MOST qualified” person out there. That is not the game. There can always be someone MORE qualified out there. The game, as laid out in the constitution, is to find a person well-respected by soceity, chosen by the president. And that is what happened. She WAS qualified and she deserved better treatment than that.

  28. 28
    scs says:

    And as a top political lawyer involved…

    Just to clarify above, I meant Miers there, not me.

  29. 29
    scs says:

    1.) Harriet Miers was the least qualified nominee to the Supreme Court in decades

    By the way, the vaunted Sandra Day O’Connor, was also only appointed an Arizona state judge, like Gonzales, for exactly TWO years. IT’s amazing to me how these two years over a career somehow make someone SO much more qualified and somehow raises their IQ points to rise exponentially. I suppose one could argue “well at least we have a FEW legal opinions to look at to judge their writing and thinking skills”. I suppose it helps some. But its like any office job, does two years make THAT much difference with anything? After two years in most professions, such as doctors and architects, two years of experiences just means they are still apprentices. So the two years make Sandra Day O’Connor one of the most qualified and the lack of two years over a career make Miers the LEAST qualified. Go figure.

    Before she was a judge, O’Connor, had floated in and out of work as a small town lawyer and a stay at home mom and then was appointed senator to the state senate and was a senator for some years. Contrast that to Miers with a whole lifetime of working at top law firms, heading the state bar and being a top White House lawyer for 10 years. I think if you put them up head to head, I think Miers is as qualfied over the course of her career to interpet the constitution as O’Connor was.

    Yet somehow Miers is the LEAST qualified in years? Go figure. I think you all need to educate yourselves and look at the background of the recent justices before you make sweeping generalizations that are prejudical and wrong.

  30. 30
    Sojourner says:

    She certainly didn’t help herself by the notes she wrote to W (http://www.thesmokinggun.com/a.....iers1.html), her inability to write (google miers writing ability for lots of examples), her failure to fill out the questionnaire adequately, and her failure to impress during her courtesy visits.

    At the very least, O’Connor had none of those things working against her. You also don’t give her due credit for her accomplishments. See http://www.edwardsly.com/oconnors.htm. Look in particular at the part describing her judicial philosophy. Does Miers even have a judicial philosophy? Apparently, the conservative elite couldn’t find one.

    Being a nice person and a friend of W’s just doesn’t hack it.

  31. 31
    Retief says:

    Let’s not forget that Bork really was and is crazy. Does anybody dispute that he thinks Roe and Griswold should both be overturned? Does anybody dispute that he still claims that Brown v Board of Educations was wrongly decided, although he has, now, come up with some reasoning that he claims would have allowed him to decide it the same way? Not the mention the beard. The beard proves it.

  32. 32
    scs says:

    her inability to write (google miers writing ability for lots of examples), her failure to fill out the questionnaire adequately, and her failure to impress during her courtesy visits.

    We are discussing two different issues here. Like I said, I don’t mind if she is judged on her actual recent performance and actual writings. Of course she should be evaluated. (As long as it’s honestly done – I still have my suspicions on whether she was that bad or the senators WANTED her to be that bad.) I am talking about the exaggerated response to her resume that people had from the beginning, with people acting like it was SO far off base compared to recent nominees and Justices. That she was SO unqualified. Like I feel I’ve shown with O’Connor (whom I respect a lot by the way) and Gonzales, she was not that far behind. Perhaps she was a touch disadvantaged because like Rehnquist, she hadn’t been a judge for 2 years. But she also had a distinguished resume putting her in the ballpark. I just object to this extreme reaction to her, acting like her career was no more than being a glorified secretary for Bush. It’s just wrong.

  33. 33
    Steve S says:

    Two points on Bork:

    – He was, and is still crazy.

    – He was a partisan hack. His actions involving Watergate were beyond shame. They were so pathetic and disgusting, that two better men resigned rather than do what Bork did.

    He was rightly denied a seat on the Court, and if I had my way he’d have his citizenship revoked.

  34. 34
    Steve S says:

    There is not going to be a vote banning the filibuster. Republicans aren’t stupid. Doing so will completely shut down the government. Or if nothing else, it will show them as spineless cowards who whine when they don’t get their way.

    Americans don’t like extremists. They want Congress to compromise and do the right thing, not just roll over on the American people.

  35. 35
    scs says:

    Okay here’s another one. William Rehnquist was a lawyer in a private practice in Arizona and active in the Republican Party for about 15 years. Nixon then appointed him Assistant Attorney General for 2 years and then nominated him for Justice.

    Is that SO much better than Miers? He was never a judge either. He was a lawyer in a small private practice. He was Assistant AG for only about 2 years. Miers was head of a large law firm and president of her state bar. She was a top political lawyer and WH Cousel for about 10 years.

    How is this true that Miers is the least qualifed lawyer by FAR in decades? That is just nonsense and in my opinion sexism.

  36. 36
    scs says:

    1.) Harriet Miers was the least qualified nominee to the Supreme Court in decades

    One more. Clarence Thomas was a lawyer for John Danforth in the tax divsion and then as his legal aide for many years. He was then appointed by Reagan to run the Equal Employment Opportunity Commision for about 10 years. Reagan appointed him an Appeals court judge for what seems like ONE, maybe 2 years, and then nominated him for Justice.

    He had ONE year as a judge and 10 years in the EEOC. Not all that much constitutional experience either, looks like. But somehow Miers was the worst, by FAR.

  37. 37
    Sojourner says:

    I have to agree with scs’s last point. It’s a toss-up in my mind as to whether Miers was worse than Thomas.

  38. 38
    scs says:

    I have to agree with scs’s last point

    Let’s declare a national holiday for that one, that’s a first. Oh wait it already is, Halloween.

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