Residual Forces

Hugh Hewitt, fresh off his recent “Defend Miers, Defeat Conservatism” tour, has lashed out at his longtime friends the conservatives in the New York Times.

OVER the last two elections, the Republican Party regained control of the United States Senate by electing new senators in Florida, Georgia, Minnesota, Missouri, North Carolina, South Carolina, South Dakota and Texas. These victories were attributable in large measure to the central demand made by Republican candidates, and heard and embraced by voters, that President Bush’s nominees deserved an up-or-down decision on the floor of the Senate.

They still do deserve to have the Democrats give them their vote, rather than being blocked, filibustered, or publically humiliated in the official Senate record. But this was different. This nominee, how ever fine a person or loyal Bush friend she was, did not pass the smell test. She was NOT a nominee who had earned her day in court by spending her life in front of around the SCOTUS. How ever fine a person, confidant, or lawyer she was that does not mean she should be given a pass on proving she has what it takes to be on the Supreme Court.

Now, with the withdrawal of Harriet Miers under an instant, fierce and sometimes false assault from conservative pundits and activists, it will be difficult for Republican candidates to continue to make this winning argument: that Democrats have deeply damaged the integrity of the advice and consent process.

I completely disagree. First off this battle was fought outside of the Senate. It would be tanamount to the MoveON liberals sabotaging a moderate appointment had Kerry won last November. It was not slick Senators and staffers that stopped this nonsense. It was the new media, ironically Hugh’s own creation of sorts. It was Hugh himself that championed the blogosphere into relevance. He himself gave credit to the once laughed at electropundritry. So it pains me to point out that the ‘blogfather’ is wrong on this. The nomination was withdrawn before it got to the official advice and consent stage. Officially it would be no different if she had done so for health reasons. This is nothing like what was done to Estrada or the others. On that point, Hugh is just plain wrong.

The right’s embrace in the Miers nomination of tactics previously exclusive to the left - exaggeration, invective, anonymous sources, an unbroken stream of new charges, television advertisements paid for by secret sources - will make it immeasurably harder to denounce and deflect such assaults when the Democrats make them the next time around.

I agree the false attacks were wrong, but they were not the bulk of the objections. A large majority of the arguments against Miers did not come from the high powered and well funded people. The actual conservative base was up in arms over this one, right down to the street corner. It was not a scheme plotted in aristrocratic Ivy League circles of political pundits and think tanks. This battle went to the core of the conservatives.

Maybe Bush and the Republican team he assembled to win reelection last year did not fully understand that when they promissed good judges, that this would be a campaign promise they had to keep. This was an issue that cut across conservative lines. Be it religous, pro-life, 2nd amendment, or just plain constitutionalism this was the unifying issue that made Bush’s campaign successful. This was the one issue that would allow most to turn a blind eye to other issues they did not agree with. It was this theme that got Bush reelected.

Not all critics of Ms. Miers from the right used these tactics, and those who did not will be able to continue on with the project of restoring sanity to the process that went haywire with Judge Bork’s rejection in 1987. Conservatives are also fortunate that no Republican senator called for Ms. Miers’s withdrawal.

Is Hugh actually saying that some lost the privilege or right to disagree in the future? He for one should know that if one is found out to have been dubious or unreliable in the past, they will have no merit or credibility in the future. And since no Senators did call for or openly oppose Miers on ideological grounds, this in no way relates to Bork.

But the Democrats’ hand has been strengthened. Voting for or against Ms. Miers would have forced Senate Democrats to articulate a coherent standard for future nominees. Now, the Democrats have free rein.

Had Bush and the pro-Miers side articulated a coherent set of reasons why we should support her, I believe we would have. But this time, some one forgot to tell the base just what was going on. We were blind-sided with a nominee that did not instantly exhibit the ability and readiness for the SCOTUS as Roberts did. From day one, it was more than clear that he did have what was needed to please the conservatives. His record of service before the court and the numerous colleagues, Hugh included, instantly rallied around him with cold hard first hand accounts of Roberts proven constitutional credibility. Little was left to doubt whether he would be a good fair Justice.

The next nominee - even one who is a superb scholar and sitting judge who recently underwent Senate confirmation like Michael McConnell of the United States Court of Appeals for the 10th Circuit, or a long-serving superstar like Michael Luttig of the Fourth Circuit - will face an instant and savage assault. After all, it “worked” with Ms. Miers. A claim of “special circumstances” justifying a filibuster will also be forthcoming. And will other nominees simply pass on the opportunity to walk out in the middle of a crossfire?

A superb scholar and sitting judge would not have faced such an assault that just happened. Had the kind of nominee Hugh speaks of been brought forth in the first place, the recent episode could have been avoided. And all the effort from the conservatives could have been used in favor of, rather than against. I’m not so sure the Democrats will readily seize on this recent braking of ranks on the right as the opportunity to once and for all kill conservatives. If anything, the movement is stronger than ever. For the first time ever, they got what they wanted all on their own inspite of the elected officials. They were forced with the decision to wait and see if the Senators they had elected would help them, or go it alone and prove the point themselves. This time, they did it all on their own. For once, it was the base that had the upper hand in the final say.

A White House counsel with distinguished credentials was compared to Caligula’s horse and Barney the dog on National Review’s Web site. George Will denounced as “crude” those evangelicals who thought Ms. Miers’s faith was a good indication of character in a nominee and a hopeful sign on issues involving the unborn. She was labeled a crony before lunch on the day of her nomination by scores of commentators. Attacks on her competence within the White House followed immediately. She never had a chance, really.

Such personal attacks are and always will be wrong according to me. But cronyism was pretty evident to me even before lunch. I saw the nomination as weak as it seemed to appease Democratic demands. Woman, with out publicly known right wing statements, speeches, and writings. She was the dream candidate if a Republican President had to work with a solidly Democratic Senate, but that is far from the case no matter how unreliable some RINOs vote. Bush had the upper hand. He had just nominated a man that single handedly annihilated the most powerful of the Democrats in DC. He silenced the leftist activists and legacy media in mere moments. He made it ok for conservatives to raise their heads out of the fox hole once again.

The Miers precedent cements an extraconstitutional new standard for nominees. Had the framers intended only judges for the court, they would have said so. No doubt some Miers critics will protest a willingness to support nominees who have never sat on the bench, but no president is going to send one forward after this debacle

I disagree. Right now, today, conservatives hold the upper hand in the political landscape. Hugh himself has pointed out that the actual ‘new idea’ makers today are on the right. So why is he surprised to see us expect results from our hard work? We for once, in this current generation, had been given a say in the long-term future of this country, were we supposed to sit by and let a b-squad justice get a life appointment? After all, the importance of the courts was the rallying cry for the Hugh and the Republicans. Had Miers had a record or clear evidence that proved she was ready to make life or death decisions on constitutional grounds she would have eagerly supported by the conservatives. When the time comes that a nominee comes forth, even with out judicial experience, that clearly displays his or her readiness for such a critical position, they will be welcomed like any of the rumored ’short list’ we were expecting. The only lesson to be learned here on this point is to send the absolute best potential judicial nominee forward, don’t leave the professionals on the sidelines when the game is on the line.

It will be the lasting glory or the lasting shame of The Corner and others involved in driving Ms. Miers from the field, depending on what happens, and not just with the next nominee and his or her votes on the court, but all the nominees that follow, and all the Senate campaigns that will be affected, as well as the presidential race in 2008.

I disagree. Yes some people were over the top, but these are the people who do little for election results. I believe that this will bring forth so many more good candidates for elections. This will also free up the tongues of some candidates already running or in office to embrace conservatism, rather than fear it. Many people are afraid of the possible public backlash from average people because the conservatives are often painted as fringe or far right, but in this case, it was these very people who held the line and for once showed the fortitude that they will not back down from the fight.

I think that this will inspire many already in office to get back to the base on a wide range of issues. The Republicans had been drifting from the conservatives in recent years, and the divide was becoming too wide to bridge. Many elected officials feared alienation from the Republican Party if they dared be seen toeing the conservative line. Now they can see that given the right battles, the conservatives can be counted on to the end. Just imagine the effort against this nomination focussed properly on a leftist idea or policy, now add a Republican Party marching lock-step right besides them. That my friends is a force that cannot not be matched by the left. It would be unstoppable.

This triumph of the conservative punditocracy will have lasting consequences, and I hope my fears are misplaced. The first returns will come in the decision on parental notification statutes that will be argued before the Supreme Court in late November. Absent a miracle of Senate efficiency, Justice Sandra Day O’Connor will cast one of her last votes on the most important abortion-rights case in a few years. And then the accounting will begin in earnest.

Yes this upcoming vote is important, but not at the cost of a life-time of other votes on so many other issues. Miers’ one vote on this, at the possible votes on countless others, is not something that the conservative base can live with. Give us a good justice, that will rule judiciously, and the vast majority of America will be better off. The SCOTUS is not a place for promissed votes and rigid political beliefs.