Several emailers have argued that I have missed the more fundamental problem with Hewitt’s latest defense of Miers. It contradicts his earlier, and more important defense of Mires. From a reader:

Jonah,
Let’s put the details of the affirmative action discussion aside, and
address the contradiction in Hugh’s argument. It’s a killer.
I listen to Hewitt’s radio show fairly regularly, and one of his main
defenses of Miers’ nomination has been that Constitutional Law is not
very tough to master so she should have no trouble bringing common sense
to her interpretation of the decision.
And yet, he offers this rebuke in his aside that you quoted:
“Don’t know what Brentwood is? Or the state action doctrine? Not many
people do. But those that don’t ought not to be confusing ConLaw with
the private decisions of private firms while arguing that this policy
makes Miers suspect on Bollinger.”
For the sake of belittling critics of the Miers’ nomination, Hugh is
allowing that very few people understand the intricacies of the relevant
case law, which seems to deflate the cornerstone of his overall argument
in her favor. Maybe ConLaw does require special knowledge after all, as
Hugh now insists.

And, from a very informed friend:

….it seems to me the self-contradiction is worse than you lay out. He’s been arguing that constitutional interpretation is easy. You just need to read the Constitution and apply common sense. If that’s your view, then the proper approach to affirmative action isn’t to go through the Court’s case law, which would require knowledge of the precedents—you know, scholarship, elitist stuff like that. So the invocation of Brentwood or the Court’s state-action test doesn’t get him anywhere. (It won’t do get him out of this jam to say that a justice should hire clerks who can walk him through the precedents. First of all, that would mean being “elitist” on Hewitt’s terms about hiring for clerks. Second, the justice would have to pick dependable guides to the precedents for clerks, and how is he or she supposed to gauge their dependability without background knowledge of her own?)