Potter Stewart? You Gotta Be Kidding Me...

Hugh Hewitt on Tuesday stated on his site that he believes Harriet Miers is going to be a lot like Potter Stewart, Supreme Court Justice—1958 to 1981. Now, it is true that yesterday Marcie and I posted that the Asylum was supporting her nomination. However, we’d like to add something to that.

http://hughhewitt.com/archives/2005/10/09-week/index.php#a000343

We support the idea that as a nominee of the president, she should be given a fair hearing by the Judiciary Committee. In those hearings, she will either be forthcoming about her judicial philosophy, or she won’t be. Either way, she is owed the benefit of the doubt by everyone. He is the president, and he deserves our support. There’s the obvious matter of not having enough information to make a reasoned judgment on her, and that is being addressed by not just us but a number of people and websites.

But after finding out that Hugh Hewitt, a man I respect greatly, believes she will be another Potter Stewart, I had to send him an E-mail today. Below is the letter that I sent him. I think I make a decent case for questioning his reasoning, and why we’d want another Potter Stewart on the high court.


I love you man, but I think you're starting to lose it. You think Harriet Miers is another Potter Stewart? And you're supporting her? Lord, I'm with the heathens here...

Allow me a level of discourse here regarding Justice Stewart. Yes, I know you're a Con Law professor. And I'm sure you're aware of Justice Stewart, but I'm wondering if you truly are thinking clearly.

Justice Stewart was a moderate, at best. In Furman, he joined with the court striking down all death penalty laws. The Constitution specifically provides for the death penalty. Under the Fourth and Fifth Amendments, it's specifically states that no one may denied "life" "without due process of law." So, where was the jurisprudence in this decision. It was as weak as that used in Roe. Four years later, he reversed himself in Gregg.

He refused to side with the majority in Griswold, yet he sided with the majority in Roe; a case that's underlying precedent was the decision from Griswold Justice Stewart seemed to be the original "flip-flopper" many years before John Kerry made the term infamous in politics. He was one of the justices in favor of striking down abortion laws--usurping the rights and power of the States under the Tenth Amendment--and believed that "abortion reform" was necessary for a variety of policy reasons. I cite Mark "The Great One" Levin's book, "Men in Black:"

As Stewart saw it, abortion was becoming one reasonable solution to population control. Poor people, in particular, were consistently victims of archaic and artificially complicated laws...

Still, these were issues of the very sort that made Stewart uncomfortable. Precisely because of their political nature, the Court should avoid them. But the state legislatures were always so far behind. Few seemed likely to amend their abortion laws. Much as Stewart disliked the Court's being involved in this kind of controversy, this was perhaps an instance where it had to be involved. (Emphasis mine.)

I hope that Harriet Miers won't be like Justice Stewart inasmuch as deeming when the court should be involved in matters to right perceived societal wrongs.

I trust the president as much as I trust any former president. The track record isn't a pretty one. Eight justices in fifty, or so, years, and all eight were disappointments. So, if my president--the commander-in-chief of this nation--asks me to trust him I will, but I still have questions that have gone unanswered. With Chief Justice Roberts was nominated, we had a track record a mile long prior to the release of any documents.

We have her qualifications on record. They're impressive...most impressive. BUT, there's nothing on record about her judicial philosophy. THAT is the key point that we, at our site, have been emphasizing. We haven't seen anything solid as yet. The hearings, I trust, will reveal more of that.

And I have one other little beef with you. This past Monday in your opening monologue, you attacked the Miers detractors. It was a widespread generalization of us. You called us idiots. Now, a name is a name. I understand where you were going, but I find it rather hypocritical that a man as well-versed in Con Law would have a problem with people speaking their minds; a fundamental right under the First Amendment. Right or wrong, we have that right, and on our site--and a number of other sites including NRO and Confirm Them--there is reasoned critique of this nominee.
Further, you stated that Con Law isn't that hard to learn and practice. Really? Then let me give you something to chew on. I'm not a lawyer. I'll be a first year law student starting with the spring semester next year. All of my Constitutional education has come from reading numerous sources including: The Constitution, the Federalist Papers, the transcripts (those available) of the Constitutional Convention, and the various writings by the Framers about the Constitution. I have read nearly every USSC decision that is available online. I have read case reviews. When the Supreme Court hands down a decision, I'm one of the first people diving into it, disseminating it, and if it's wrong I give no quarter on our site. In short, I've got a lot of book learning under my belt, and a head full of knowledge that would make most law professors cringe. Here's my question: If I were nominated to the Supreme Court, would YOU support my nomination as much as you support Harriet Miers nomination?

I would like to hear what you have to say about this. I'm not looking for a plug. I'm looking for an answer. We can agree to disagree. At my site, we're giving her the benefit of the doubt. We'll see what the hearings have to say, and go from there.

Thank you for your attention and time.


It’s not bad, but I do address a number of things regarding Potter Stewart. There’s information out there showing that Harriet Miers might be as moderate as the former justice. This gives me pause. It should give the nation pause. We have far too many issues that will be dropped in the Supreme Court’s lap over the next couple of years.

On the war on terror, a definitive, smart decision must go on the record as to what protections detainees, illegal combatants, and terrorists have. We’ve already had a few decisions (Hamdi, Rasul, and Padilla) where there is little consistency. This is especially true in Hamdi and Padilla, as both men were American citizens. However, it is traditionally accepted that should an American citizen take up arms or give aid and comfort to an enemy, that is considered an act of treason. In their cases, neither was charged with treason, and were merely held in detention. They contended they had rights under the Constitution.

On the issue of abortion, the court needs to either find a common ground—a rooted precedent—that people can rely on, or the court needs to steer away from it’s stare decisis excuse, overturn Roe, and remand it back to the purview of the States.

Interstate Commerce, the reach of the federal government into areas such as property rights, free speech, etc., the cases will mount. We know we have three solid, Constitutionally-minded conservatives on the Supreme Court. Those three are Chief Justice Roberts, Associate Justice Clarence Thomas, and Associate Justice Antonin "Nino" Scalia. All three of these men were infinitely more qualified, at the time of their nomination, than Harriet Miers. They were intellectual and jurisprudential juggernauts. Harriet Miers, despite her accomplishments, isn’t. And I find that disheartening. But she’s still owed the right to plead her case before the committee.

Publius II