Sleepwalking through the argument

It's Hewitt v. Bork on the merits of the Miers nomination to the Supreme Court, and Bork wins, not because of anything Harriet Miers herself is or is not, but because Hewitt either didn't bring his "A" game to the table or doesn't have one.

Hewitt means to accuse the judge he admires of rank hypocrisy, hence the post title of "Bork v. Bork." But the starting position to which Hewitt assigned Bork is pegged not to his previous comments on Miers (all of them consistent) but to a book published before the Miers nomination was announced.

Hewitt summarizes Bork's introduction to that book as follows:

Bork's on-target critique of SCOTUS is not that is not powered by enough intellect, but that intellectuals or would-be intellectuals have run it over the cultural cliff...the most important quality in a justice, from Bork's published point of view, would be humility in the face of majoritarian choices consistent with the federalist framework.

The pertinent question then becomes, "can anyone who puts such stock in humility on the bench be reasonably expected to support a humble nominee like Harriet Miers?"

Hewitt thinks yes, and Bork says no-- not because he's a hypocrite, but because, humility and other virtues aside, Harriet Miers "has no known experience with constitutional law and no known opinions on judicial philosophy."

Memo to Hewitt: You don't have to be an intellectual to have a paper trail, and Bork admits to trepidation over what NY Times columnist David Brooks calls the nominee's "lack of ability to write clearly and argue incisively."

Hewitt glides past that red flag item to accuse Bork of being dismissive of a "distinguished but non-judicial career."

But I read Bork's piece as being deservedly harder on George W. Bush than on Miers. "The administration's defense of the nomination is pathetic," Bork asserts, and then shows why. He never says the nominee herself is pathetic, only that she is "not qualified to be on the Supreme Court." Though Hewitt refuses to see it, there is a difference between "dismissive" and "disputatious"-- one condescends and the other does not.

Right there, in fact, I disagree with Judge Bork (and, incidentally, with Ann Coulter).

The Supreme Court has had more than a few misfires among its legal all-stars; Harriet Miers can do no worse than Justice Blackmun did with "penumbras" and "emanations." Given what experience she actually does have, Miers is qualified enough for the nomination. Whether she should have gotten it is another matter.

The point is that in challenging something Bork says, I haven't mischaracterized his argument, which is more than Hewitt can claim.

Rather than respond to Bork's reasoning, Hewitt professes amazement that the judge could write:

The wars in Afghanistan and Iraq aside, George W. Bush has not governed as a conservative (amnesty for illegal immigrants, reckless spending that will ultimately undo his tax cuts, signing a campaign finance bill even while maintaining its unconstitutionality).

By way of response, Hewitt lobs a faulty analogy over the ping pong table:

This is the same as arguing that "Except for opposing Hitler and later warning of the descent of the Iron Curtain, Churchill did not govern as a conservative."

Hmmm...For that to make any sense, you must define war on militant Islamists as the essence of conservatism. Sorry, Hewitt, but there's more to conservativism than placing calls to the Chairman of the Joint Chiefs. Even I know that.

Hewitt should, too, but he's too busy screaming that Bork ought not to have said that Bush wants "amnesty" for illegal aliens because this week the president says he and the Department of Homeland Security want to go after them, and, uh, "guest worker" programs aren't the same as "amnesty." Really.

But I'm with Bork on that one. A speech without a policy is just that, and the guest worker thing was a sop to el amigo del presidente, Vincente Fox, who wouldn't mind staking a claim to that ranch in Crawford and a big chunk of what MECHA activists still call "Alta California."

From the field guide to wildlife for conservatives: If it looks like el pato and quacks like el pato, it probably is el pato.

Inexplicably, Hewitt also takes issue with Bork's claim that "there is a great deal more to constitutional law than Roe." Well, yeah, there is. A fairly obvious point, no? And that doesn't mean Bork wants a super genius opining on all of it from the bench -- calm down about that "BosWash axis of elitism," wouldja please?-- but Hewitt just smirks in rejoinder ("not for the the 44 million unborn, I suppose").

Yo, Hewitt: Bork's already called Roe v. Wade a "constitutional travesty" -- and now you're angry with him because the plight of the aborted and at-risk isn't the only thing he wants to talk about? Bad form, man. Bad form.

Hewitt wants to know whether Bollinger is a bigger deal to conservatives than Roe. That's easy. I'm a conservative. I don't know what the Bollinger case is or was. But I know Roe. And I know a losing argument when I read one.

Bork's against the nomination to SCOTUS of a woman whom Hewitt supports by proxy (because, darn it, she's okay, and such nominations are a presidential perogative), and all Hewitt can muster in response to the broadside from a judge he respects is one part snark, one part disappointment, two parts sarcasm, and a garnish of feigned indignation. Sheesh.

UPDATE, October 20: Pending the arrival of Amy Welborn's promised thoughts on the matter, Matt Lewis pulls the "elitist" card from Hewitt's hand with the speed of a riverboat gambler in a seersucker suit:

Our movement has gained credibility from intellectuals like William F. Buckley, who have proven that our ideas can compete -- and win -- in the academic world. Nevertheless, most conservatives joined the movement because they were inspired by a graduate of Eureka College, a College dropout, and a carpenter. If that's elitism, then I plead guilty.