Combs Spouts Off

I like Hugh Hewitt, both as a blogger and as a talk radio host. He’s intelligent, articulate, and funny. I don’t always agree with him, of course. For one thing, I’m a libertarian — albeit hawkish and more realistic than most — and he’s a social conservative.

But there’s another problem: Hugh has rarely encountered a Bush administration decision he wouldn’t defend, and given the decidedly mixed record of this administration, that requires a great deal of, shall we say, flexibility.

Mind you, sometimes Hugh is an appropriately calming voice when his conservative friends are becoming overwrought for no good reason. But at other times, Hugh is just carrying the administration’s water and spinning like a Maytag after Final Rinse.

Regarding the Harriet Miers nomination, he seems to be in Spin Mode, and so far it’s an unbalanced load. Here’s what Hugh said just last night (emphasis added):

ConfirmThem.com hears it is Judge Luttig or Judge Williams. I am hoping for the former, and if not Judge Luttig, then the 10th Circuit’s Michael McConnell. The best case for either man is that they are the best men for the court. In the end, I am hoping that President Bush makes a choice that he can defend to the country as a simple merit pick, free of political calculation or constituency bolstering. …
… 
The Supreme Court deserves the best jurists available to it. If the Constitution matters, then the nominees to join the court that interprets the Constitution should be those judges with the best intellectual talent, calm temperment and governmental experience.

And I clearly recall hearing Hugh describe candidates aged 55-60 as too old because, he argued, longevity on the bench should be a critical factor in choosing a nominee.

So, here’s Hugh this morning, describing a 60-year-old woman with zero judicial experience and unremarkable credentials:

Harriet Miers isn’t a Justice Souter pick, so don’t be silly. It is a solid, B+ pick. …
…
The second President Bush knows Harriet Miers, and knows her well. The White House Counsel is an unknown to most SCOTUS observors, but not to the president, who has seen her at work for great lengths of years and in very different situations, including as an advisor in wartime. Leonard Leo is very happy with the choice, which ought to be enough for most conservatices.

As I wrote last night, Judges Luttig and McConnell are the most qualified nominees out there, but I think from the start that the president must have decided that this seat would be given to a woman, and it is very hard to argue that she is not the most qualified woman to be on the SCOTUS for the simple reason that she has been in the White House for many years.

So, Hugh, you’re saying we should embrace this nominee who has no judicial experience (or, apparently, philosophy), who was a Democrat throughout the 80s, and whose career has been primarily focused on administration and management because her close personal friend W. vouches for her, and her close personal friend Leonard Leo vouches for her, and she’s a woman, and working in the White House trumps everything else as a qualification for a Supreme Court justice? Is that about it?

Oh, yeah — she’s up to speed on the GWOT, and you think that’s real important for a SCOTUS nominee. Never mind that, if confirmed, she’d likely have to recuse herself from the very GWOT-related cases that you think she’s qualified to decide. 

I’ll try to keep an open mind, Hugh, but you haven’t made much of a case so far. James Dobson’s endorsement of her pro-life credentials on your show doesn’t persuade me, either, because I’m pro-choice. It’s not a critical issue for me either way. I’ll tell you what is: I want a justice who can articulate why "public use" isn’t the same as "public benefit" and who’ll insist that growing a plant in your basement isn’t interstate commerce. I want a justice who reads the Constitution and sees a few limited, enumerated powers granted to the federal government, while recognizing that the rights retained by the people are unenumerable.

I share the concerns Todd Zywicki expressed at the Volokh Conspiracy. He contrasted appointments who "simply ‘vote right’ on the court" with those, like Brandeis, Warren, Scalia, or Thomas, who bring a judicial philosphy and intellectual leadership, and who can thus "change the legal culture." Zywicki’s assessment of Roberts and Miers wasn’t kind:

… One suspects that the best that conservatives can hope for from the two them is that they will consistently "vote right." But neither of them appears to be suited by background or temperament to provide intellectual leadership that will move the legal culture. … 

Zywicki’s concern is exactly what concerned me about Roberts, but I told myself that the Chief Justice needed to be someone with some administrative and people skills, rather than a philosophical purist such as Thomas. Besides, Roberts was eminently qualified by education, experience, intellect, and temperament. It would have been churlish to criticize Bush for nominating such a strong candidate just because he wasn’t absolutely perfect.

I don’t believe we need this latest nominee’s management skills. Nor do I believe her qualifications remotely approach those of Roberts. There must be literally hundreds of people better qualified than Harriet Miers. Does Bush simply lack the stomach for a fight? Or is he, as Zywicki suggests, simply "uninterested in ideas and interested only in power"? Or does personal loyalty trump everything else for him?

For whatever reason, Bush nominated a pragmatic, easy-to-confirm candidate who appears to be philosophically rudderless and poorly prepared for the job. Maybe she’ll grow into it. Maybe she’s even secretly honed a well-thought-out, rigorous originalist legal philosophy that only Bush, Leo, and a few others sworn to secrecy know about.

But pardon me for remaining skeptical.

UPDATE: If you liked this post, please vote for it at Radio Blogger (before noon on Monday, 10/10), where I’m up for a blog of the week award. Also, see my follow-up, The real problem with the Mier nomination, for more about why nominating a "stealth" candidate with no clearly articulated judicial philosophy is a terrible mistake.

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