Hugh Hewitt’s op-ed in the NY Times is available. With characteristic clarity, Hewitt outlines his thoughts on the ramifications of the Miers meltdown.

The core of Hewitt’s argument is that Miers should have received an up or down vote in the Senate, because “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.”

The other money quote: “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.”

While cries to move on and look ahead are certainly popular right now, it seems a certain amount of self-reflection is appropriate and healthy, especially now that we’re starting to be removed from the situation.

My question for the anti-Miers contingent who called for withdrawal is simple. If Miers is as bad a candidate as some pundits would have us think, then the only group that stands to lose by having her go through the confirmation process is the Bush White House, and they lost anyway. Would it have been that bad if the process had run its course and she had been overwhelmingly defeated? The replacement judge would have been delayed a few weeks, which is crucial given the upcoming abortion rights case before the court, but having a replacement in time for that is now in jeopardy anyway.

The anti-anti-Miers crowd took a ‘wait-and-see’ stance, which given the lack of substantial evidence either way, seems wholly appropriate and rational. What we needed was more substantial evidence that Miers was an awful candidate, the sort of evidence that hours of confirmation hearings would hopefully provide. If she goes to the hearings, then everyone has the possibility of being persuaded one way or the other by solid arguments, not hearsay and conjecture. If Miers submitted an awful performance (i.e. didn’t persuade us that she is an originalist), then the anti-anti-Miers people *might* plead for someone else, everyone would vote her down, and we would be in the position we are now, except that everyone would agree that she wasn’t the right choice.

My question for Hugh: if Miers had made it to the confirmation hearings and if there was inconclusive evidence that she is a solid conservative, would it merit voting her down, political consequences for Bush (and ’08) be damned?*

Disclaimer: As poli-blogging is a new world to me, forgive me if I’m asking the wrong questions. It seems that if I’m going to get involved politically, that this SCOTUS nomination is the appropriate time to do it. What little blogging muscle I can flex, I will to help the cause of healing the split and confirming the next justice.

Update: Thanks for the link, Hugh, and more importantly, thanks for answering the question. Would a defeat on the Senate floor be as damaging as a withdrawal and a split party? It depends on the nature of the defeat, but if she’s bad enough to call for a withdrawal, then she probably would have been soundly voted down.

Also, welcome Hewitt readers. Do me a favor and visit friends Rezitech (for all your home and small business technology needs) and Ink Invitations (for world-class paper invitations–see her portfolio here).

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Posted by Matthew Lee Anderson

Matthew Lee Anderson is the Founder and Lead Writer of Mere Orthodoxy. He is the author of Earthen Vessels: Why Our Bodies Matter to our Faith and The End of Our Exploring: A Book about Questioning and the Confidence of Faith. Follow him on Twitter or on Facebook.


  1. *sigh* the frustrating thing in the after effects of this is the number of people willing to tell us who wanted Miers to go to confirmation hearings, get a chance to actually tell her side. Shoot — who were looking at the Constitution and seeing nothing in there for all the things these “originalists” were claiming were the reasons Miers shouldn’t even get a chance at hearings — but we are the ones who are being told “You aren’t conservative”

    Lovely way to “unite” eh?

    I also suspect an awful lot of people are going to have trobules getting the President to care what they think now.

    Our President, who is VERY loyal, is not going to take betrayal lightly. And this was betrayal front and center.

    Between this and the recent actions of the Senators in refusing to backdown from their pork, I suspect 2006 is going to be bloody. What’s more — I’m finding it hard to care at the moment.


  2. My Boaz’s Ruth,

    Between this and the recent actions of the Senators in refusing to backdown from their pork, I suspect 2006 is going to be bloody. What’s more — I’m finding it hard to care at the moment.

    Thanks for the comment. My thought on this is that nothing will galvanize and motivate the right as a Supreme Court nominee who’s conservative and has impeccable credentials–someone that the left would be forced to attempt to destroy. The mean-spiritedness of the left might bring the right back to its senses (and to the polls!).

    Regarding your first paragraph, I’m not sure I understand the criticism….


  3. Hewitt goes awry in his first paragraph. “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.”

    The central demand of Republican candidates was an up-or-down vote? This issue swayed the voters toward Republicans?

    As my wife would say, “Holy cats!”


  4. If he’s awry in paragraph one, I’m not sure it’s crucial to his point.

    I’m also not sure he’s awry–the judiciary was one of the, if not the, main plank in the Republican platform in ’04. Hence the cries of treason from conservative ranks.


  5. First, it’s just the first flaw I noticed (when time permits, I’m going to post a thoroughgoing critique).

    Second, sure it’s important–because he sees the confirmation process as so crucial in the past, and thus crucial to future outcomes. I don’t buy it, especially as this seems to be a relatively minor setback (as far as a Gallup poll is showing).

    Read the Republican party platform from 2004. What’s topic #1? Security. What has the most pages allocated to that single topic? Security. Where are the courts mentioned? In two paragraphs on page 77.

    Hugh assumes that voters (not just Republicans, and certainly not just Evangelicals) sided with the GOP largely based on their stance on judicial activism. I’d wager it’s because that was tops on his agenda… but I’d have to read his archive to be sure.


  6. The official party platform deal is interesting.

    I don’t have a vested interest either way regarding the claim, but it could be that he is thinking primarily of the evangelical vote (as it seems they were significantly more motivated to vote in 04 than in past elections). If it was the evangelical vote that pushed Bush and other conservative candidates through, then it’s a safe bet that the courts were absolutely essential to them. Two issues dominated 04, it seems: Iraq and the Courts, but I’m doubtful that Iraq really moved the evangelical base that much. But I don’t have time right now to go do the research….


  7. 41 of the 109 SCJ never served as judges until they were nominated to the bench, however, they were all attorneys. If Miers was a “strict constructionist”, and I would venture a guess that President Bush was duly knowledgable of her judicial philosophy, then I would argue that perhaps a breath of fresh air and reason was the desired effect and end to the appointment of Miers. She obviously had an outstanding record in regard to her legal and career experience, based on the milestones in her legal career. Personally, I do think it is a shame that the roar over her nomination was so loud that the quiet conversations which might have shed substantial light on her effectiveness as a SCJ never was allowed to be articulated. The Court is an all important appointment, but judging by the many past appointments made by Republican Presidents, thinking that they made the best decision, has in hind-sight shown that we can not ever be certain how a nominee will interpret the law. President Bush has a forum of voices that no other president has had to deal with…and that is the blog. Courage is the virtue of doing something that goes against the grain, but rings true in one’s own heart…this is our President. His nomination for Miers resounded true and right to him, but we the people refused to shut up and listen long enough to see if she rang true and right for us and ultimately for the Supreme Court.


  8. but we the people refused to shut up and listen long enough to see if she rang true and right for us and ultimately for the Supreme Court.

    Judging from the commentary of people like George Will and Laura Ingraham, my take is that some of the people weren’t willing to risk Miers turning into another Kennedy, or god forbid, Souter, 10-15 years down the road. It’s been pretty well established that Roberts is in the mold of Scalia and Thomas, and will be reliably conservative. However, by pushing him up to Chief, the 5-4 liberal balance of the court was not changed, and then (if she would have ended up like Kennedy or Souter) we’d be right back where we started from and Bush’s judiciary campaign promises would have been meaningless, and our country would have continued down the slope it’s going down.

    To borrow a phrase from the campaign, I guess you could say the anti-Miers base was willing to expend vast amounts of political capital to prevent that from happening.

    I just hope to HELL that Bush wakes up and does the right thing. I hope that Frist has the necessary cojones to push the shiny red button. I hope that at least 5 of the 7 traitors come back to where they belong.

    I don’t know if I’ve ever seen a bigger (for conservatives/Republicans) IF than I am seeing right now.


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