Piling on Miers is getting ridiculous

This post at “Baseball Crank” prompted me to post a mild rebuke in the comments, cross-posted here for the record. The subject is Hugh Hewitt’s imputations of elitism to some of Miers’ critics (because she went to SMU rather than Harvard), followed up by him then actually invoking a little bit of an elitist tone in a follow-up response to a different criticism.

Hugh is on record as actually promoting an elitist mindset in his book “In, But Not Of”, where he advises young Christians to go to fancy schools, etc., to get with the crowd that has the influence on the world. Sort of like he did.

But though I think he has gotten a bit hyperbolic at times in his earnest defense of the Miers nomination, he has been a lot less so than Will, NRO, Prof. Bainbridge, or the other virulent commentators who are so unhinged by this that they have taken to criticizing the proofreading of her questionnaire responses for one letter typos as evidence of her unfitness for the job (http://bench.nationalreview.com/archives/080370.asp).

This would have been far better in every respect if those opposed had made their substantive objections known and then shut up, at least with the hortatorical invective, until there was something real to talk about. The first legitimate policy-oriented issue I’ve seen brought up is the Texas Bar Assn minority set-aside, which is a substantive policy matter that people can discuss, pro and con, in an adult manner.

But it was, and still is, demeaning to a distinguished attorney to say that unless she is an incompetent idiot she is supposed to remember the names of ConLaw cases (e.g., the 1920’s Nebraska case on German language instruction, etc.) that only law professors remember after ConLaw 1- you remember the concept, the ruling, but seldom the rationale or the case name. And there is absolutely no reason to remember it all, even for one going to the Court.

And to be apoplectic about her statement that Griswold was “correctly decided” is simply unfair, revealing more ignorance on the part of those protesting than Ms. Miers herself. I tend to agree that Griswold WAS correctly decided, while disagreeing with Douglas’ rationale. If you read the decision again, you can very consistently argue- with Harlan- that the state has no right, where we are “endowed by our Creator with certain inalienable rights… among these… life, LIBERTY…” (emphasis added) to intrude on the intimate affairs of married couples. That says absolutely nothing about Roe, which made no pretense whatever of any natural law or Constitutional basis. Harlan goes to the 14th Amendment, implicitly incorporating the originalism of the Declaration in declaring our independence from state interference in our daily lives. Where there is another life involved- as in a fetus- there is a state interest in protecting that helpless life. What’s not to like about liberty and morality, predicated on marriage, as the Griswold decision- not the Douglas opinion rationale- concluded?

The thing to do, still, is to see how she handles the hearings and the questioning. Ask her detailed questions about philosophy. If she refuses to answer, or gives answers you don’t like, vote her down.

But the current right-vs-right food fight has brought out the petty in everyone, and makes me ashamed to be a conservative. Some of these postings in various places sound, in form and even substance, like Daily Kos.


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