Why Hewitt Is Wrong

I have tremendous respect and admiration for Hugh Hewitt, and I don’t disagree with him lightly, but I think his op-ed in today’s New York Times is wrong on many levels.

First, the tactics employed by most on the Right were not those used by the Left. Miers’ record was not falsified or distorted, but it was scrutinized. Most of the critiques, particularly those made her, were substantive. Insofar as there was significant attention to irrelevancies, such attention was invited by the White House. If you claim a nominee is “detail oriented,” you should expect people to notice when she fails to record the dates on which she served on a for-profit corporation’s Board of Directors. If a nominee’s record in the White House is praised, whether those who worked with her shared that impression is worth knowing. I do not believe this compares with the savage and dishonest campaign waged against prior conservative nominees — and that we will likely see again if Bush follows with a solid nomination.

Second, Miers’ withdrawal does not contravene the call for giving nominees up-or-down votes. No one was going to deny her a vote. There was never any threat of a filibuster or tying her up in committee. There were not even any delays in the process — other than any that may have resulted from the nominee’ own failures to provide complete and accurate information to the Committee. The White House and the nominee eventually realized there was more to lose by continuing ahead than by stopping the process — but this was their decision.

As I told Hugh on his show the other night, almost all of the arguments the White House made in support of Miers’ confirmation were either bad arguments or untrue. Many on the Right have long argued that a nominee’s demonstrated legal accomplishments are paramount, that religion is irrelevant, that a nominee’s political views (on abortion on anything else) do not dictate their legal views, that what matters is the nominee’s “head” not his or her “heart,” and so on. Yet the White House and its proxies implicitly challenged or rejected each of these arguments in pushing for Miers. Just as bad, many of the claims made about Miers’ temperament (“detail oriented”) or White House experience (e.g. her work on judges), were quickly contradicted by the available evidence. Worse, the failure to fully vet her nomination meant there was an endless stream of disclosures and revelations for which the White House, and its supporters, were wholly unprepared — disclosures that often undermined the case for Miers the White House sought to make. This is not the fault of conservatives, but of a White House that failed to do its homework before making a choice.

Up until the Miers’ nomination, I believe the Bush Administration had an unparalleled record on judicial nominees. Chief Justice Roberts was a fantastic choice, as were the vast majority of Bush’s appellate nominees. On this basis, I was ready to give Miers’ the benefit of the doubt from day one. For the last several weeks I listened patiently for someone, anyone, to make the case that Miers was a worthy nominee. That case was never made. I have no doubt that she is an accomplished lawyer, and a woman who deserves our admiration and respect for much that she has done over the course of her career. But that doesn’t mean she should have been on the Supreme court. If lasting harm was done to conservatives’ principled arguments about the judicial nomination process, that harm was done by the White House, not those who called the Administration to account.

Jonathan H. Adler — Jonathan H. Adler teaches courses in environmental, administrative, and constitutional law at the Case Western Reserve University School of Law.

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