Party Discipline:

It seems to me that the "new argument" (Orin's words in this post) that Hugh Hewitt is introducing into the Miers debate is actually an old argument -- one of the standard arguments for party discipline. Say that you believe the following:

  1. One of the parties' programs is much better for the country than the other's on subjects A, B, and C.
  2. A political defeat for the party on the quite different subject D might substantially weaken the party's ability to get the rest of its program implemented.
  3. The party's proposal as to the somewhat less important matter D isn't what you'd have wanted the party to do, but isn't that bad.
It then makes good sense for you to swallow your objections to D, rather than fighting the party on D and thereby weakening the party and making it harder for the party to implement its good policies on A, B, C, and D. And the same applies if you substitute "the current Administration" (or the portion of the party embodied in the Administration) for "the party."

Here, Hugh is arguing that fighting the Administration on Miers would politically weaken the Administration more generally, and thus make it harder for the Administration to pursue its foreign policy (which Hugh thinks is sound); this, he suggests, is good reason for people who generally support the Administration's foreign policy to accede to the Miers nomination. Some Democrats could equally argue that fighting the Democratic Party on some issue (e.g., race-based affirmative action) would politically weaken the party more generally, and thus make it harder for the party to protect abortion rights or the environment or social services programs (positions that the arguers think are sound); this, they would suggest, is good reason for people who generally support the Democrats' abortion rights / environmental / social services programs to accede to the party's position on race-based affirmative action. Both strike me as legitimate arguments.

Of course, if one disagrees with any of the three assumptions I identified above, one won't be persuaded by the argument that flow from those assumptions. If one thinks that the Republicans' (or the Administration's) positions on important issues are wrong, then you may want the party to be weakened. If one thinks that the success or failure of the Miers nomination won't affect the Republicans' / the Administration's political success more broadly, then one can focus solely on the merits of the Miers nomination and not worry about the indirect political consequences. And if one thinks that the Miers nomination is a very bad idea, then one may well choose to oppose it despite the harm that the indirect political consequences may do to Republican / Administration initiatives that one endorses.

But I take it that Hugh agrees with those three assumptions, and thinks some of his readers agree with them. And to those who agree with the assumptions, Hugh's argument may well be properly persuasive. Is there something I'm missing here? Is there some reason why Hugh's argument should indeed leave us "speechless"?

Anderson (mail) (www):
All is as Prof. V. says. It's just that anyone who believes (3) of the Miers nomination is, well, stupid or something. Or, shall we say, sublimely indifferent to the jurisprudence of our highest court.

In particular, conservative Republicans who can endorse (3) of Miers, had best not've been flapping their jaws about the sorry state of the Court over the past howevermany years.
10.15.2005 5:22pm
Matt Tievsky (mail):
I'd also add something that relates to point 3: So long as Bush believes that Republicans will bow down the way Hewitt has, in the name of party solidarity, there's no disciplinary mechanism in place to keep Bush from making more decisions like the nomination of Miers. Indeed, it's safe to say that Bush thought that he could get away with this because he believed the GOP would do what it's been doing for the past 4 years--overlook the present betrayal of conservatism in the name of "the long run." There are another 4 years to go in the Bush Administration. The stakes, in this case, are greater than the identity of a single Supreme Court Justice.
10.15.2005 5:37pm
gs (mail):
Here's my version of MT's point:

2a: Political defeats for the party on the quite different subjects D,E,F,G,... might substantially weaken the party's ability to get the rest of its program implemented.

3a: The party's proposals as to the matters D,E,F,G,... aren't what you'd have wanted the party to do, but aren't that bad in most individual cases. In the aggregate, D,E,F,G... etc. are of comparable or greater importance as A,B, or C even though each member of the first group is less important than each member of the second.
10.15.2005 5:43pm
Is there something I'm missing here? Is there some reason why Hugh's argument should indeed leave us "speechless"?

Yes, what you are missing is just how very tired many of us are at being told again and again that not supporting almost every action this president takes is ultimately going to lead to our loved ones being killed by terrorists. There are some cases in which it might be more plausibly true than others, but when it's brought up so often it gets a little thin. Why bother looking at the merits of any single decision when all that ultimately matters is supporting everything the president does because only then will we not die? Pathetic. Why don't they just start holding up a kitten and threatening to drown it if we don't all agree with every thing Bush says and does? That would at least be more transparent.
10.15.2005 5:55pm
Gabriel Rossman (www):
I think that part of the administration's problem is that for wide parts of the coalition, D is more important than A, B, and C put together. Without having looked thoroughly through the data, I think it's fair to speculate that shattering the penumbra is far more important to theocons than are many other issues. Likewise, I imagine that a literal interpretation of the commerce clause is very important to many libretarians.

This is especially true when one considers that even if one did value A, B, and C, the differences are mild. Let's say A is spending, obviously the difference is purely rhetorical. If B is immigration, the paleocons are getting no satisfaction from a party leadership that is tempermentally and strategically just as in favor of immigration as are the Democrats. And if C is Hewitt's paradigmatic case, the war on terror, there is likewise only a moderate gulf between the parties. True, the Democratic grassroots are Carter-ites, but the leadership has made a strategic decision to push a moderately hawkish platform (including the absurd homage to the USN that was their last convention).
10.15.2005 6:05pm
D. Fox (mail):
(2) is also pretty weak. Are Congressmen suddenly going to quit supporting the war just because the Administration can't get Miers on the court? To quote Jerry Kennedy (from the George V. Higgins novels): "Somehow, I don't think so."
10.15.2005 6:10pm
Here's what I'd see as the obvious response.

1. Many people aren't all that happy with A,B, and C these days. Practically everyone is upset with Bush's (the Republican's) out of control spending (which had just become an even bigger issue recently with Glenn et al's "porkbusters" initiative), and many people are also upset with problems in Iraq, Katrina response, Plamegate, etc. Even if we agree that most of the non-Miers, non-budget criticisms of Bush are relatively week, they aren't exactly the rallying cries they once were.

2. It is far from certain that fighting Bush on this (even this and spending) will lead to a Democratic victory any time soon. It could even be argued that allowing the party principles to degrade is more likely to lead to a Republican defeat then nipping these problems in the bud. In my mind bad policy is more likely to lead to political defeat then attempts to change bad policy.

3. I wouldn't say that this nomination is more important than the war on terror or the budget, but I don't think it is significantly less important. This is not a collateral issue. Maybe the population as a whole doesn't see it this way, but that's all the more reason for those of us who realize the full importance of this nomination to "make a big deal out of it."
10.15.2005 6:22pm
He is speechless because he is recognizing that Hewitt is a hack who puts what he considers the good of the party ahead of the nation.
10.15.2005 6:26pm
roger (mail):
I have to disagree with Prof Volokh too. The charitable reading he asks us to consider STILL does not have any reasonable reader (IMO) going along with the suggestion that:

"If there are Republican gains in the congress in 2006 and a Republican is elected in 2008, Islamic violence in Iraq and elsewhere will grind to a halt."

Therein lies the root of befuddlement and speechlessness! Can/does anyone really & truly hang with THAT Hewitt Howler ?!?
10.15.2005 6:54pm
William Spieler (mail) (www):
What if A was replacing Rehnquist, B was replacing O'Connor, C is replacing whoever is next, and D is everything else since his first inauguration?
10.15.2005 7:02pm
Byomtov (mail):
What is ridiculous is Hewitt's "A,B, and C." His argument is that the election of a Democrat in 2008 will be catastrophic - many terrorist attacks, possibly a nuclear one, etc. Thus there is almost no "D" that he cannot justify by his logic, and there is almost nothing he will not permit Republicans.

This would even include outright criminal behavior. If convicting DeLay weakens the party, for example, then let him go, no matter the facts. If vote fraud is needed to assure victory, then so be it.

So let's recognize that Hewitt is not just a Republican, he is a person who is willing to allow almost anything in the interests of keeping Republicans in power.
10.15.2005 7:11pm
von (mail) (www):
Kerr's responsive post answers the substance of Professor Volokh's critique, i.e., it is not the form of Professor Hewitt's argument that is astonishing, but it's substance. And, as commentator Byomtov notes above, one problem with Hewitt's argument is that it proves far too much: If a catastrophic terrorist attack can only be prevented by continued Republican control of government, as Hewitt suggests, a great deal might be justified to maintain that control.

Now, I'm nominally on the same side as Hewitt, in that I'm a Republican (albeit from the classic liberal wing of the party). I can see Hewitt's usefulness in motiving certain elements of the Republican base -- a base that doesn't always listen to/care for more moderate folks such myself. (I also understand him to be a pretty nice guy.) Under Hewitt's logic, then, I should refrain from criticizing him -- despite the fact that I find his argument logically ridiculous, as well as fundamentally foolish in its elevation of partisanship over both qualification and reason.

Yet, I'm disinclined: Hewitt is not only a hack, but a poor hack. His willingness to say virtually anything to advance the supposed interests of his "client" (presumably, the Republican party) has deastroyed his credibility. As any practicing lawyer will tell you, once an advocate loses his credibility, he's through. He's remains persuasive only to those who already agree with him, i.e., he's not persuasive at all.

This is, needless to say, a fairly ridiculous position for a purported professor of the law to find himself in. But it is a position that Hewitt has willingly accepted.
10.15.2005 7:42pm
Hattio (mail):
I think you will find that Mahan was quoting Erp, not Hugh Hewitt when he quoted:

"If there are Republican gains in the congress in 2006 and a Republican is elected in 2008, Islamic violence in Iraq and elsewhere will grind to a halt."

At least I couldn't find it in my quick perusal of the Hugh Hewitt column. If Hewitt did say it, he is even more of an idiot.
10.15.2005 8:13pm
Anderson (mail) (www):
Would it be too malevolent of me to point out that virtually identical logic was common among Stalinists, within and without the Soviet Union?

"True, Stalin is a criminal, but if we denounce him, the plutocrats would triumph!"

Ergo: Any argument that proves as much as the one Prof. V. has outlined, is prima facie fallacious.
10.15.2005 9:09pm
SimonD (www):
This (from Eric) needs repeating with explicit emphasis:
[Orin] is speechless because he is recognizing that Hewitt is a hack who puts what he considers the good of the party ahead of the nation.
We should not lose sight of the fact that Hewitt is mistaken, and the Miers nomination is a mistake both for America and the GOP.
10.15.2005 9:30pm
This is actually a standard argument in competitive policy debate. It's usually not hard to link the passage of any presidential or congressional policy to the passage of any other one and argue that the second one is more important.

Usually, though, one has to combine warrants from different authors to make the argument work. For example, the New York Times might say that defeating Miers would hurt Bush's political clout and the Washington Post might say that Bush needs to be strong politically to advance specific terrorism policies, while National Review would defend those policies as necessary to prevent attacks on the U.S. It's rare to find all those arguments in a few paragraphs, though, because (as most debaters acknowledge when the debate is over), the rube-goldberg-like connections between discrete policies are usually very tenuous at best. Either Hewitt believes what he's saying, in which case he's a hack, or he's making the argument disingenuously, in which case he's a hack.
10.15.2005 9:36pm
The link to Orin's post is broken.
10.15.2005 9:58pm
Jeremy Pierce (mail) (www):
I'm not sure I'd endorse either 2 or 3, in this case, but there's one thing I'm sure of. I don't have enough information to deny either 2 or 3, particularly 3. I'm not sure I'd say anyone is stupid for endorsing 3, but I think it's going beyond the evidence. I sure would say that denying 3 is just as much going beyond the evidence. We really need to wait for the hearings to make any judgment like 3.
10.15.2005 11:24pm
Ted F. (www):
The problem with Hugh's argument is that the "party unity" argument was used to keep people in line on issues like out-of-control spending, steel tariffs, immigration, a brand-new gigantic DHS bureaucracy, and McCain-Feingold on precisely the grounds that these issues weren't as important as having a president who would nominate a Scalia/Thomas to the bench. This was the "read my lips" non-negotiable chip that persuaded so many people to stand by the president as he made other mistakes, and now people are being told that it was all a bait-and-switch. What's left?
10.16.2005 2:31am
Dustin R. Ridgeway (mail):

Would it be too malevolent of me to point out that virtually identical logic was common among Stalinists, within and without the Soviet Union?

Certainly not comrade. That's one of the more fascinating aspects of the GOP. For all their conservative/individualist rhetoric, when push comes to shove they practice a fierce form of collectivism and spartan utilitarianism that could make even the most stalwart Maoist or Stalinist blush.
10.16.2005 7:47am
murky (mail) (www):
What's missing from your paraphrase of Hewitt's agrument is his implicit message "never mind cronyism and the abuse of executive authority"
10.16.2005 1:38pm
Dave Hardy (mail) (www):
I think the point was that this was a valid FORM of argument. That is not the same as saying that this particular use of the form is persuasive or correct. For the argument to fly, 1, 2 and 3 must be more valuable than 4 (and depending upon how bad 4 is, perhaps much more valuable). It must also be true that failure to get 4 will in fact reduce to some significant degree the chances of getting 1, 2, and 3. (Which is, I suspect, where this argument's overstatement has its biggest problems, i.e., that failure to confirm will somehow result in other governmental problems that will in turn cause additional terrorism. Even a party stalwart has to concede that Bill Clinton had exceptional problems with appointees having to withdraw, which had little effect on his political power).

So whether this *particular use of that rhetorical form* is persuasive depends upon our judgment as to those considerations.

And of course there are counter arguments outside of this one (getting 4 will encourage them to bring on the even goofier 5, 6, and 7).
10.16.2005 9:09pm
Paul doson (mail) (www):
That's really a good dscussion going on here. I think this is the hottest topic on the net.
10.17.2005 9:50am
Blar (mail) (www):
Although they both follow the same argument form, there is an enormous difference between the argument for Republicans to support Miers and the argument for Democrats to support race-based affirmative action*. This isn't quite the proper use of these terms, but we might say that opposing affirmative action necessarily weakens Democrats while opposing Miers only contingently weakens Republicans. On affirmative action, it is the substance of the position that matters: Democrats need to support affirmative action because it's popular among many of their voters. For Miers, the problem is merely that Republicans are disagreeing with the President. As others have noted, the argument for supporting Miers therefore generalizes to nearly every other Administration proposal. Republicans who follow this logic are beholden to the President on every issue besides the few that they care about the most. Democrats who follow this logic on affirmative action, conversely, are only beholden to the voters on certain issues that groups of voters care about the most. The argument does not generalize very far.

Republicans who cave in on every Administration proposal except A, B, and C remove all incentives that they could place on the President. They lose the power to shape his decisions, outside of the few essential policies. They grant the Administration free rein to do whatever it feels like.

What's more, when an opinion-writer accepts this argument, he ceases to be an opinion-writer. Lacking the independence to write any opinion that could damage the Administration, he becomes a mere propagandist.
10.17.2005 11:34am