Hugh Hewitt and Potter Stewart:

Hugh Hewitt writes:

Practical Potter and Even More Thoughts on the Politics of SCOTUS in 2006

The first President Bush was, I think, close friends with Justice Potter Stewart, who rose to SCOTUS after four years as a federal judge, and who, notably, retired at the age of 66. Stewart's opinions were pointed, and usually correct in my view. His job was to get it right, not construct overarching theories. How will Harriet Miers turn out on the SCOTUS? My best guess is a lot like Potter Stewart, in temperment and tone, and in results.

Now I agree that there are many well-regarded and successful Justices who were more pragmatists than theoreticians; in an earlier post, I analogized Harriet Miers to one example, Justice Byron White. And it may well be that a Court that contains a mix of theoreticians and pragmatists will do better than one that's filled entirely with theoretically or ideologically minded judges.

What puzzles me, though, is (1) Hugh Hewitt's seeming endorsement of Justice Potter Stewart's outcomes (rather than just his temperament), plus (2) Hugh's prediction that Harriet Miers will reach results similar to those that Stewart reached. On a fairly liberal Court, Justice Stewart was indeed a moderate conservative, but the emphasis should, I think, be more on the "moderate" than on the "conservative." A few examples on some of the issues that I would have thought Hugh would find important:

  1. In Griswold v. Connecticut (1965), Justice Stewart did indeed vote against recognizing a "right of privacy" that would let the Court strike down various restrictions on sexual behavior. But eight years later, in Roe v. Wade (1973), Justice Stewart stated that he was prepared to accept Griswold as a precedent, and to extend it to cover a right to abortion.

  2. In the mid-1960s, Justice Stewart took a moderate position on the degree to which the First Amendment protects pornography -- but in Miller v. California (1973), he concluded that such a moderate position was untenable, and voted with Justices Brennan, Marshall, and Douglas to hold that pornography among consenting adults was fully constitutionally protected.

  3. In the early 1960s, Justice Stewart did cast the one vote in favor of upholding school prayer. But in the 1970s, Justice Stewart voted with the majority in Lemon v. Kurtzman to hold that religious schools must be discriminatorily excluded from evenhanded school aid programs.

  4. As I mentioned, in 1965, Justice Stewart reasoned that adults do not have a constitutional right to get contraceptives. But in Carey v. Population Servs. Int'l (1977), Justice Stewart joined Justices Brennan, Marshall, and Blackmun in striking down a ban on the distribution of contraceptives to under-16-year-olds. (Nor was Justice Stewart's decision based on a theory of parental rights; though the ban restricted parents' ability to provide contraceptives to children, and Justice Powell's concurrence used that as a basis for arguing against the ban's constitutionality, the opinion that Justice Stewart joined did not focus on this argument.)

Now I have no reason to think that Harriet Miers will indeed "turn out" "a lot like Potter Stewart" "in results." But I'm not sure I see why, if Hugh thinks she would so turn out, he thinks that the Stewart analogy cuts in her favor. Is it that (1) I'm mistaken in my views about what results Hugh himself would prefer? That (2) Hugh doesn't really care much about the results, and is supporting Harriet Miers even though she might well reaffirm abortion rights, vote against evenhanded school aid programs, or broadly protect pornography (again, a prediction that I would not make, but that seems consistent with Hugh's prediction that she'd be much like Potter Stewart)? Or that (3) Hugh thinks that Miers will turn out like Potter Stewart on most issues, but not on these issues? Or am I missing something else here?

Eugene, please, let's not talk about results. Conservatives aren't interested in judicial results. They merely want Justices who will interpret the Constitution as it is written, regardless of the outcome. They are just umpires, remember?
10.14.2005 8:42pm
Gordon (mail):

But eight years later, in Roe v. Wade (1973), Justice Stewart stated that he was prepared to accept Griswold as a precedent, and to extend it to cover a right to abortion.

Stare decisis would easily explain this "turnabout." Being a practical-minded justice, Potter Stewart recognized the importance of the concept, an importance often ridiculed or ignored by academics, purists, and Justice Clarence Thomas (per the recent Scalia comment).

Common sense means not fighting the last war.
10.14.2005 8:45pm
Eugene Volokh (www):
Well, I'm not sure how much being bound by stare decisis required Justice Stewart to reach the result he did. He could well have accepted Griswold, for instance, but declined to extend it to abortion rights (much as Justice White did); there are obvious distinctions that could quite rationally be drawn. Yet instead he went considerably beyond what Griswold, even viewed as a binding precedent, mandated.

But in any event, if Potter Stewart was merely going along with precedent, and Harriet Miers would use a similar approach to Potter Stewart's and reach similar results (not my prediction, but rather Hugh Hewitt's), then it would follow that she'd likely support abortion rights, sexual autonomy rights under Lawrence v. Texas, Romer v. Evans, and the like, since all of those are also precedents. Yet I'd have thought that Hugh Hewitt would disapprove of such a result, even though it might show a "practical-minded" endorsement of stare decisis. Was I mistaken?
10.14.2005 8:58pm
Victoria (mail) (www):
Justice Potter Stewart, who rose to SCOTUS after four years as a federal judge, and who, notably, retired at the age of 66.

Putting on my Kreskin cap, I read into this that Hugh Hewitt is predicting Harriet Miers will be on the SCOTUS until 2011.

I'm not mollified, Hugh.

10.14.2005 9:07pm
James Kabala (mail):
That was a weird, weird post by Hewitt and I'm glad someone called him out on it. The only explanation I can think of is that Hewitt isn't really familiar with Stewart's voting record and assumed that Stewart was OK based on the fact that he was a Republican, was friends with Bush 41, and isn't as infamous among conservatives as Warren or Blackmun or Souter.
10.14.2005 9:39pm
Ali Karim Bey (mail):
Prof. How about a thread that shows for HM and another for against HM?

It is incredibly hard to wade through HM critics. There is no story to support her in front, like the NYT column today.

HM may not be right for SC, but she deserves a fair process. If this is not possible today in USA, then may be we all need to go back to our respective old countries.

10.14.2005 9:42pm
Ali Karim Bey (mail):
It is time to talk about Ruth Bader Ginsburg. There are people like Andy Sullivan and Micky Kaus saying HM would not be in SC if not for Bush.

What about RBG? Her husband, a #1 Wall Street person, was Clintons # 1 contributor. He is reported to have said that his only request for the new President (Clinton) was a seat for his wife on SC. What about him? Why did not the people get him? Why he got a pass? Why did she get a pass?

Yes, HM is not right for SC. That is a different story. I am upset at the hatred towards her life (yes, she went to SMU, and so what). Let us dissect everyone. Let us start with a history of how RBG got into SC. Come on. Let us do this. Or are you all afraid to touch an ivyleager.

10.14.2005 10:20pm
Hewitt will say anything.
10.14.2005 10:24pm
Ken Willis (mail):
The conservatives that fought for 30 years to change the direction of the court had a once-in-a-lifetime chance to see their efforts come to fruition. But the President who could never have been elected without their support has thumbed his nose at them by jumping over several conservative intellectual titans and inexplicably nominating a virtual unknown, saying only "trust me."

Hewitt is surprised that these conservatives are not going away without putting up whatever fight they are capable of. So he trashes those conservatives on his radio show and, with no evidence, writes a piece predicting that HM will be Potter Stewart.

Hewitt, like everyone else, has no idea what kind of justice HM will be.

Hewitt has lost his mind and deserves to be ignored.
10.14.2005 10:38pm
Daniel Chapman (mail):
AKB: It's not that we give Ginsburg a free pass here... we're just all a little tired still from our last round of bashing her. You can go read it in the archives if you missed it.
10.14.2005 10:50pm
Eugene Volokh (www):
Mr. Bey: This is the first I'd ever heard that "[Ginsburg's] husband, a #1 Wall Street person, was Clintons # 1 contributor. He is reported to have said that his only request for the new President (Clinton) was a seat for his wife on SC." Do you have any pointers to reliable information on this? Marty Ginsburg was a prominent tax lawyer and law professor, not quite a "Wall Street person" in the normal sense of the word; and as normal personal contributions go, I'm sure he gave no more than the rather low legal limit. Is there evidence that he gave a lot of soft money, or bundled together a lot of contributions?
10.14.2005 10:56pm
Sr. (mail):
Marty Ginsburg was a prominent tax lawyer and law professor, not quite a "Wall Street person" in the normal sense of the word [...]

There you go, talking reason and correcting misinformation again... we'll have to take back your conservative card, if you keep that up.
10.14.2005 11:08pm
Robert Schwartz (mail):
Potter Stewart? Sure why not? More importantly David Soutter. Yes that's the ticket: David Souter.
10.14.2005 11:48pm
Yes, Mr. Bey's comment on how Ruth Bader Ginsburg was nominated for the Supreme Court seems to be purely speculation, unless, which Volokh said, there is proof that he was Clinton's #1 contributor. Even then, it is specualtion.

I did a brief search on the net and did not find anything. Whose got the goods on this guy? Bey?
10.15.2005 12:14am
arthur (mail):
More plausible on Ginsburg: her husband did help her indirectly. Because her husband was a prominent tax lawyer, she was the only professional woman in America who would not have the "nanny tax" problems that had just torpedoed the nominations of Zoe Baird and a few others.
10.15.2005 12:20am
I don't know what Ali Karim Bey and Sr. are on about ... a search at Open Secrets reveals that in the 1992 campaign cycle, Martin Ginsburg of Washington, DC gave $1,000 to the Democratic National Committee, and a grand total of $100 to Bill Clinton -- not exactly an amount that could get a lot of attention from a president.
10.15.2005 12:21am
Ali Karim Bey (mail):
Well, I guess I confused the tax with wall street. This was many years ago. But, when she was nominated, I read a lot of press. I like SC hearings the most. One of the stories I read - in a democratic press magazine - was how her husband lobbied for her to be on SC. Now I cannot remember the exact date or paper or magazine. But, if you are in legal circles (and I am not) may be there is a trail on his attempts to make sure his wife got on the SC. That's what I am saying.

Let me be open here. I absolutely throw-up at spousal hires. I cannot stand free-loaders. HM is not a free-loader. She is a SMU graduate. May be she is not John Roberts. May be she is not SC materials. But, she is NOT a spousal beneficiary of any kind. Yes, she knows Bush. But, we all have long working relations with people. Today liberals are basically forcing spousal stuff on people. Ruth got the job because her husband lobbied. Hillary got the job as she used her husband's office to get into the Senate. Pelosi used her father's connection. Fieinstein used her husband's connections. Well, what did HM use? Nothing. Natta. Zero. She worked hard. And, one day she met some guy (BUSH) who liked her work ethic. What is wrong here? Yes, yes, I know she is not right for SC. But, that is not the issue here. HM IS NOT A SPOUSAL BENEFICIARY OF ANY KIND. That game is only played by Demcorats.
10.15.2005 12:30am
Ali Karim Bey (mail):
Joshua, do you know if any one can contribute to the campaign in something that is no money? I remember he was a top supporter of Clinton. He could advice here too. That is, Clinton would have ear for Marty. Right? I do not know the details. BUT I do remember that he was anxious in getting his wife on the SC. He did get. He succeeded. How is this not an issue? A game was played by democrats. A spousal hire. A spousal beneficiary. A proquidquo. HM is not doing anything like that. Yes, yes, I know she is not SC material. But, stick to the issue - what about spouses that help people (Hillary, Ruth, Feinstein, etc.) Get them. dissect them. Leave hard working Americans from small schools with no connections. By trashing HM you are trashing people like her. We do not have Connections or Spousal ties. But, we have a work ethic.
10.15.2005 12:36am
Ali Karim Bey (mail):
Arthur, neither Zoe or others were going to SC. They were to DoJ. FYI.
10.15.2005 12:44am
unhyphenatedconservative (mail):
You forgot option 4: Bush nominated Miers, so Hewitt must defend the decision even after it has long become ludicrous. Indeed, that is when he must defend it most viciously and vapidly.
10.15.2005 12:46am
Mr. Bey wrote: "Leave hard working Americans from small schools with no connections. By trashing HM you are trashing people like her."

It seems that you are taking it personal that she is getting criticized. She's getting criticized because of her history or lack their of. Does she have the ability to interpret the Constitution? I'm not sure, but if you read the NY Times, titled, "In her own words" by David Brooks, he quotes a column written by Miers called "President's Opinion" for the Texas Bar Journal. Miers writes:
''More and more, the intractable problems in our society have one answer: broad-based intolerance of unacceptable conditions and a commitment by many to fix problems.''

He quotes a few more sentences from her column that baffle me.

I haven't heard anyone criticize her because she went to a small school(Southern Methodist University). That is just a misconception of yours Bey...

As for Ginsberg, Hillary, Ruth, Feinstein, are you saying they did not work hard to get into their positions? Did they just rely on their husbands ability and notority to get them where they are today? Please, be more specific and don't include speculations with out something to back them.
10.15.2005 1:56am
Buck Turgidson (mail):
It's kind of funny for anyone these days to whine about "liberal" nepotism and cronyism, considering the spouse/child/friend/suck-up carousel the Bush administration has imposed at most federal positions (fortunately, most are political, although, I am sure, they've placed enough suck-ups in civic service positions as well). At least, we can all agree that RBG is well qualified for her position, even, as you claim, her husband lobbied for her position. Can we say the same thing about various Browns and brown-nosers in the Bush administrations? The mutual admiration society might work at the think tank level, but if an appointee is incopetent, it's usually rather glaring and no choruses of other sycophants can remedy the situation. It's got so bad that a number of Republican senators are complaining--and we are not even talking about Miers!
10.15.2005 2:05am
Eugene Volokh (www):
Mr. Bey: If you have some specific evidence that Marty Ginsburg was a top contributor to the Clinton campaign, and parlayed his contributions into a Supreme Court spot for his wife, please produce it. If not, please publicly retract your statement and apologize for the aspersions you cast both on Mr. Ginsburg and on President Clinton.

Note that it is not enough to cite evidence that Marty Ginsburg was eager to get his wife appointed, or urged that she be appointed. Naturally people try to help their spouses; that's love for you. The original allegation was that he parlayed his financial contributions into an appointment. Please do let me know if there is any evidence that actually bears this allegation out, or, as I said, please retract it and apologize for it if you know of no such evidence.
10.15.2005 3:26am
To build on Victoria's comment:

Perhaps Hewitt is trying to imply that Miers will vote in the manner Stewart did at the beginning of his tenure, and will retire before she gravitates more towards the "left" (in terms of results), because Miers will hit age 66 only after about 6 years of service. But as I have written in other threads, a results-based defense of Miers is inherently limited and not enough to merit confirmation.
10.15.2005 1:33pm
Per Son:
You go Eugene!!!

AKB: Do you have something bad to say about Liddy Dole, because Bob supported her? Should spouses always refrain from lobbying for their spouse? Is this some new Hatch Act for families?
10.15.2005 1:43pm
Ali Karim Bey (mail):
Prof. I do not remember the details, as I said before. Only my memory as I listen to or read about SC hearings. But, this is your site. Thus, your call is final and absolute. I respect that. So, I follow your guidelines and I withdraw my statement. And, as you suggested, I am sorry to make comment about RBG and WJC. But, criticising HM for coming from a small school or being a crony (she is not) is not fair. (Yes, she is not SC material, but that is besides the point.)
10.15.2005 7:46pm
Ali Karim Bey (mail):
Per Son., I have withdraw the statement as per the policy. I do not want to comment further on this topic. (I cannot delete my comments, as I do not know how.) Okay, this thread is over for me. Thanks much.

10.15.2005 8:07pm