The Hugh Hewitt "challenge" -
The responses to arguments from the anti-anti-Miers crowd is to dodge the hard questions, which for the sake of brevity, I will list here:Does George W. Bush deserve any loyalty from his party? From pundits identified with his party? If so, how much and why not more?
Only to the extent that Bush keeps his promises on major issues. If he breaks those promises, he should at least present compelling reasons as to why he was forced to do so before expecting party loyalty. Bush promised to nominate judges in the mold of “Scalia and Thomas”. He hasn’t done that (not even with Roberts who is more of the Rehnquist mold). Any GOP President should have realized how big an issue the Supreme Court is to the party base.
Do Harriett Miers' many accomplishments count for nothing?
No they don’t – because the accomplishments here have nothing to do with the job at hand that she has been chosen for. The job in question is a Supreme Court justice who will be pro-active and effective in making the case for a textual approach towards interpreting the Constitution and federal laws. There is nothing in Miers’ background to suggest that she is inclined to do this. Hugh Hewitt has many “accomplishments” like Miers. But if Hugh Hewitt were nominated as Chairman of the Federal Reserve, people would be perfectly justified is stating that your accomplishments count for nothing vis-à-vis the job you have been appointed for.
Does Harriett Miers strike the commentator as a dedicated public servant?Yes. But that is irrelevant (see the answer to the previous question above).
Why not wait for the hearings to at least begin?
Because ever since Bork, there has never been a judicial hearing that has ever provided practical and useful information. Hearings are nothing more than a circus sideshow that ought to be abolished. The hearings have the potential to embarrass both the President and Miers even further while having virtually no chance to soothe the concerns of the many critics of her nomination.
How important is it that Roe v. Wade/Casey be reversed?
It is quite important that those cases be reversed – but only if done for the correct reasons which are forcefully spelled out in a well written decision. It would be a disaster to overturn Roe as a product of a pure policy preference (similar to the original decision). It must be overturned as a matter of Constitutional interpretive process. We don’t want a results oriented judiciary. We want a judiciary committed to textualism and the rule of law (which admittedly leads to many preordained conclusions such as the overturning of Roe). Again, there is no evidence that Miers is prepared to overturn Roe as a matter of judicial principle – only that of personal principle (and even that evidence is admittedly murky).
Which five precedents does the commentator think are in most pressing need of reversal?
That is more than five (and I have many more in my head). What connects many of these cases is that they are divorced form the text of the Constitution and have resulted in judicial policy preferences rather than fidelity to textual law. If you know of evidence that Miers would overturn these decisions for the correct reasons (see the answer to the previous question above), then please share it with us.
Does the commentator agree with George Will's assertion of Justice Lewis Powell as the "embodiment of mainstream conservative jurisprudence?"
I’ll quote Professor Bainbridge on this one “In fact, Powell did embody a strain of conservative legal jurisprudence - that of big firm, country club Republican lawyers - that was mainstream when Powell was appointed to the Court back in the early 1970s. The modern conservative jurisprudence embodied by people like Scalia and Thomas was just as much a reaction to the jurisprudence of people like Powell as the liberal jurisprudence exemplified by Brennan. At least as a factual statement, Will's comment is unremarkable. In any event, if Hewitt wants us to think Will admires Powell as the embodiment of what modern conservatives ought to believe about the law, Hugh needs stronger evidence than this passing observation.”
(Please read the entire post from Bainbridge. I doubt that Mr. Hewitt can fashion a compelling response to his arguments.)
Is a neo-Borking underway which will discredit the conservative cause's defense of its future nominees against similar, future attacks from the left?
No. Quite the contrary. Miers confirmation would discredit the conservative cause. Apparently Hugh and I disagree on what that cause is: I think it is getting the Court to understand that judicial textualism is the only morally and intellectually honest approach to how the courts should function. Hugh seems to think the conservative cause is getting a political majority on the Supreme Court.
What are the political consequences of a defeat of Miers at the hands of a GOP controlled Senate?
By defeating Miers, the GOP will largely be able to stem the damage that has been done by her nomination. It will give the President another chance to fulfill his promise to appoint Thomas or Scalia-like justices (with the unspoken promise that such justices would be out-of-the-closet conservative/textualists). Thus the party would be able to unite and put this episode behind us.
Confirming Miers would have huge and far longer lasting political consequences. Unless Miers very quickly authored a number of high profile decisions that were well reasoned and well written, the political base would feel betrayed yet again (after O’Connor, Kennedy, Souter, etc.) which would likely result in less support to the party (financial and otherwise).
This is not to suggest that political calculations are more important than judicial principles. This is simply my honest prediction of what would happen from a purely political standpoint (as required by the question posed to me).
Not only have the responses from the anti-Miers crowd not dodged the hard questions as Hewitt suggests, they have so clearly gained the upper hand in this debate that responding to Hewitt has become like shooting fish in a barrel....
UPDATE: Patterico has also responded to Hewitt. He gives some remarkably similar answers. He even lists 3 of the same court decisions that need overturning the most. (And I swear that we didn't compare notes on this one.)