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Hewitt v. Hewitt:
Before he left for vacation, Hugh Hewitt was saying that we can't trust law professors and constitutional law experts who claim that Miers lacks proven competence. According to Hugh, such critics simply are being elitist. The elites say Miers lacks competence because they want people to believe that law is only understood by experts such as themselves:
  I am not surprised that many ConLaw scholars are convinced of the complexity of ConLaw-related judging. There are obvious reasons why elites are obliged to argue for the necessity of elites. But the reality is that SCOTUS judges aren't scientists or engineers, confined by their specialities to narrow areas, and the skills of an accomplished trial lawyer can be quickly adapted to judging.
  Hugh is now back from vacation, and adds that we also can't trust the Miers critics who are not law professors or constitutional law experts. Why? According to Hugh, such critics are not elite enough to know whether Miers is competent:
  The majority of commentators who are not lawyers — there are many — are simply not equipped to judge Harriet Miers' competence. . . . There is disagreement among the ConLaw superstars. Perhaps lesser mortals in this field should wait for the hearings?
  Hmm, I think I sense a theme here.

Related Posts (on one page):

  1. Hewitt v. Hewitt:
  2. Harriett Miers as Potter Stewart:
Erick:
Obviously only law students can strike the proper balance between ignorance and elitism.
10.25.2005 2:15am
T. More (www):
Orin,

I think that Hugh Hewitt puts forward some bad defenses of Miers, and in his latest long tirade all but admits that he's really just out to defend the president here as a partisan. Nevertheless, the quotation you adduce is not a contradiction or even a tension.

Hewitt's first claim is that being a Supreme Court Justice does not require a "specialist" lawyer who knows ConLaw in and out, but just a really good lawyer.

His second claim is that non-lawyers are generally not qualified to judge whether a lawyer has been a really good lawyer or not.

Both claims can be disputed, but the two claims are just not inconsistent. He did not say that all claims to expertise amount to elitism, he simply claimed that Con Law experts demanding that one of their own be placed on the court are not justified.

Or so I read him.
10.25.2005 2:23am
SP (www):
T. More,

Fair points to be sure, but where are the all the lawyers lining up to say that she was the best gol' ding litigator thye ever faced?
10.25.2005 2:27am
OrinKerr:
T. More,

I read Hewitt differently. I understand his first claim to be that constitutional law isn't hard, and that we can't trust the experts who say Miers is incompetent because they are only trying to protect the guild. And I read his second claim to go beyond non-lawyers: I assume that when he is referring to "lesser mortals," he is referring to those that are not "conlaw superstars" rather than all non-lawyers. I agree with you, though, that under your reading both claims are possible.
10.25.2005 2:35am
Buck Turgidson (mail):
Of course, we can't trust the Miers defenders either because, in the words of Randy Newman, they don't know their ass from a hole in the ground.
10.25.2005 3:44am
Jeremy Pierce (mail) (www):
Orin,

Even as you read the statements, they're consistent. ConLaw profs who are elitist and thus incapable of applying the standards that only they can apply. Everyone else doesn't understand those standards well enough. So everyone should wait for the hearings.

The general thesis would be that someone need not be a ConLaw specialist to be qualified enough to be on the Supreme Court, but one need be a ConLaw specialist to have the higher-order knowledge necessary to evaluate which people are qualified to be on the Supreme Court, except that many of those with such higher-order knowledge have had their judgments affected by it, and they think you need the higher-order knowledge to be qualified. So we should all wait for the hearings.

I don't agree with this interpretation, by the way. I think T. More's reading is far more plausible. I just don't think Hewitt is inconsistent even on your reading.
10.25.2005 9:45am
Scott Moss (mail) (www):
Notwithstanding these attempts to find some arguable interpretation by which Hewitt's comments are not inconsistent... this is hilarious, Orin -- thanks.
10.25.2005 9:55am
Marcus1:
Editors:

Check the end of the comments to this entry:

[Orin Kerr, October 24, 2005 at 1:22am]
Ideology and Supreme Court Voting Patterns:

And feel free to delete this post too.
10.25.2005 10:04am
Londo (mail):
You went to law school, and are obviously educated, so clearly I can't choose the cup in front of YOU!
10.25.2005 10:12am
Visitor Again:
Also check out the first message in the comments to McNulty Gets the Nod at DOJ by Orin Kerr, October 24, 2005 at 1:42am. Is it only Orin Kerr's entries that draw the porn blurbs?
10.25.2005 10:21am
Probatio Viva (mail):
I'm with Scott Moss on this one ... The juxtaposition made me laugh out loud. Thank you, Prof. Kerr!
10.25.2005 10:32am
Richard Bellamy (mail):
I have always been curious about people who state "the most important thing is to protect X at any cost," and then are taken seriously about anything they talk about that incidently protects X.

Hewitt believes that the "most important thing" is the continued dominance and cohesion of the Republicans. Fine. He is perfectly free to hold that view. But then, when he makes arguments about Harriet Miers, why would ANYONE think, "Let me examine whether this is a valid defense of Miers" versus thinking, "Hewitt is writing this to increase the dominance and coherence of the Republican party, whether it's true or not."

I had the same problem with war supporters who would one minute say, "Stating opposition to the war hurts morale and is tantamount to treason. The only morally correct position is to support any war." Fine. I don't agree with that, but it's a logically coherent position. Then, they go out and say, "I support the war!" Great. Why should I take what you say seriously? Isn't is just as likely that you secretly oppose the war, but believe that saying so would be tantamount to treason, so are falsely claiming support in order to help morale?
10.25.2005 10:47am
Phil (mail):
It seems to me that conlaw profs and fed app judges have at least one valuable trait in common: they are likely to have thought fairly deeply about a relatively broad range of legal questions. (Serving as law clerk to an appellate judge provides some of the same advantages.) It is hard to imagine that SOC did not experience some degree of culture shock and that her fact intensive and non-ideological approach (which are not necessarily good things) was driven to some extent by her lack of prior exposure to various areas of federal law. Habeas corpus is not rocket science, but it is technical and sometimes subtle; ditto for Fourth Amdt and confrontation clause stuff. Throw in some of the other fed areas like immigration and admiralty and one really needs some serious prep to deliver decent product. I have seen moronic mistakes made by sitting judges who just happened to be out of their comfort zones. Harriet Miers may be (able to be) a great judge, but there is nothing in her background that supports this probability now. There exist very little reason to take this risk, and I cannot see any reason why conservatives should (even assuming that Miers would vote to overturn Roe).
10.25.2005 10:59am
Per Son:
I for one am changing topic for a short bit. This is not elitism!!! It is about qualifications. McNulty went to a third or fourth tier school (Capital University), but as a practicing attorney he has performed greatly - including dealing some of the most difficult criminal/terrorism issues of our time (get your Clinton jokes out now).
10.25.2005 11:02am
Victor Davis (mail) (www):
In my sad state of non-lawyerly ignorance, there is one thing I feel comfortable concluding: Hewitt has jumped the shark. Will was right; defending this nominee makes people look silly.
10.25.2005 11:04am
John Armstrong (mail):
I have to agree that the tone is depressingly familiar. Quite a number of casual conversations I've had regarding the law have run aground on the mismatch between my (very lay) understanding and that of my interlocutor.

When I run into someone who has a popular misconception of a concept in mathematics or physics, I tend to find that the conversation is much more cordial and that everyone understands more when I try to explain in layman's terms where their impression is mistaken. It's easier than one might think to try to understand why the layman doesn't understand the technicality and to get him around it. Saying, "I'm the expert and you're not," is simply lazy.

As an aside, I note that I'm more likely to be taken to task for my ignorance by lawyers who got their J.D.s from "third or fourth tier school[s]" than with people I meet at places like Yale.
10.25.2005 11:12am
Phil (mail):
John Armstrong
I think that the reason that lawyers who received that JDs at some of the lesser lights are somewhat more likely to take you to task is that for many of those folks, goiung to law school was their biggest achievement. Lawyers who attended higher ranked law schools are (somewhat) more likely to have other significant achievements, so law school is less important to their identities. This also distinguishes them from most physicists or mathematicians who (I think) are likely to have other noteworthy accomplishments. I would be interested, however, in other people's perceptions of these facts.
10.25.2005 11:53am
Guy Johnson (mail) (www):
Several people have posted point-by-point refutations of Hewitt's argument. The two best are here and here.
10.25.2005 12:08pm
Dustin R. Ridgeway (mail):
To jump the shark, means at least having had some redeeming quality to begin with; not so with Mr. Hewitt. Whatever the merits of the ideas he claims to hold or philosophy he claims to subscribe to are, Hugh Hewitt is, has always been and most likely always will be a hack.
10.25.2005 12:22pm
Per Son:
I tend to disagree with Armstrong's observations. I am an attorney, and feel that the only time I run into elitism is when dealing with Harvard Law grads. No other Ivys are obnoxious for the most part (no more than the standard amount of obnoxious persons per 1,000 per annum).

There is something about Harvard grads though. I'll admit that I am biased though, my old boss graduated from Harvard 30 years ago and still talked about Harvard everyday and distinguished himself from other attorneys in DC who "only" went to Georgetown, GW, and American. In fact, he told potential summer associates that they should choose the firm, because they will be trained by a Harvard trained lawyer.

Yeesh. I am glad I got that off of my chest.
10.25.2005 12:39pm
Anderson (mail) (www):
We had to get down to Dustin before anyone reminded us that Hewitt = Hack?
10.25.2005 1:10pm
Hattio (mail):
Per Son,
Ever meet any U of C grads??? Most are insufferable on the subject of their school no matter how pleasant in general.
10.25.2005 1:11pm
Sam:
As a 2L at a fourth tier school, I've found students from all law schools to be to be fairly obnoxious. People from the local top 15 school think they're the second coming of Clarence Darrow while my classmates are overly defensive and feel a need to give their two cents whenever they think they have something intelligent to say. Needless to say, this makes for awkward conversation when the two groups meet at firm recruiting events.

Most students at both schools are decent, but we both have a fair share of jerks.
10.25.2005 1:23pm
John Armstrong (mail):
Per Son:
I admit that I haven't had as much interaction with Harvard students as with those bumming around New Haven, CT. All of my comments here should be read with the disclaimer, "In my own personal experience, which may or may not be representative".

I'm also inspired to wonder if there are two (or more) different "faces" to be considered. That is: legal types may present to their legal colleagues one way and to hoi polloi another. Again, from my own experience I'm more likely to wave my hands and encourage lay audiences (including my undergraduate students) and to play hardball with supposedly mathematically adept audiences.

A conjecture: this (admittedly subtextually patronizing) approach is characteristic to the "top tier" of a given field, while the lower tiers engender a more confrontational approach to laymen.
10.25.2005 1:45pm
Ken Willis (mail):
Hewitt defended Bush's support of Arlen Specter when he faced a primary challenge from Pat Toomey, and defended Bush's support for Specter as Judicary Committee Chairman. Toomey came close and might have beat Spector without bush's support for Specter. The R's would be better today with Toomey than they are with Spector.

Hewitt would defend Bush if the nominee were Barney Frank. Hewitt's a hack.

P.S. I spelled Spector/Specter two ways on the theory that one of them might be correct.
10.25.2005 2:07pm
corngrower:
Phil;

You did it! You defined the debate.You maybe don't know it, but you did.

Thinking deeply about the law. Well you can think as deep as you care to. I just do not see a single comma in the constitution that set a minimum age for the death penalty. Now maybe those Conlaw profs with their time and thought into this issue can, I cannot. Maybe you could help us. With your experience with deep thinking lawyers, can find this hidden tidbit of constitutional law that allows SCOTUS to make a new law. A new law that overturns a state law (enacted by elected representatives), that amends the Constitution by judicial fiat. Do explain the deep thinking that finds ANY substance for this decision.
Only 'deep thinking' can extrapolate something that does not exist. Three branches of govt. Checks and balances. With your experience with deep thinkers, tell me how I, a citizen can set the age for the death penalty.

God, what tripe.
10.25.2005 2:24pm
George of the Legal Jungle (mail):
When did Hewitt becomes a "ConLaw superstar?" What makes him qualified to comment on the Miers confirmation? He teaches con law, but he's not widely published in the field, and let's face it, odds are he was hired to promote the school more so than for his scholarly abilities.
10.25.2005 3:01pm
SimonD (www):
Like the insurgents in Iraq, Hugh senses that defeat is imminent, and having invested himself so heavily in this enterprise, is becoming desparate. His blog posts for the last two weeks have sounded like a man caught between the determination to go down with the ship and the complete failure to realize that the ship is already sinking by the nose.
10.25.2005 3:40pm
Crane (mail):

You went to law school, and are obviously educated, so clearly I can't choose the cup in front of YOU!


On the other hand, you would have known that I have no legal education - in fact, you would have counted on it - so I can clearly not choose the wine in front of me.
10.25.2005 4:51pm
Hayek:
I don't take anything Hugh Hewitt says seriously since his bizarre grandstanding against Target for their decision to bann the Salvation Army (and all other charities) from its property.

That said, it seems to me that, contrary to Hewitt's initial premise, "accomplished trial lawyer[s]" would make the worst judges, since they are so used to rallying behind the arguments of whichever side is willing to pay their fees and hires them first. How can that skill be "quickly adapted to judging" exactly?
10.25.2005 6:03pm
Unnamed Co-Conspirator:
Phil wrote:



That's right, Phil, if you don't have an Ivy League law diploma to hang on your I Love Me Wall, life's steep downhill run begins on graduation day.

So, Phil, what law school do you go to?

I'll bet that a couple of years ago, when you graduated from college, you would have substituted "college" for "law school"? in what must be one of the most ridiculous statements I've read on this blog. Don't lose hope, though. I hear Hugh Hewitt's looking for an intern.
10.25.2005 7:25pm
Phil (mail):
corngrower
If I thought that confirming justices who went to Joe's Bar and Law School would lead to a decent level of deference to the other branches and the states I would support such. J. Scalia went to Gorgetown and Harvard and was a law profg and a Judge on the DC Cir (this bio would normally be the kiss-of-death from my point of view), but he is (most days) my favorite justice. More importantly, fancy con law is not the bulk of SCOTUS work. I realize that habeas corpus, immigration, etc. are reputed to be incredibly easy, but I have not found them to be so. If someone has some evidence that less experience as a judge and/or law prof makes for more deferential justices, I would like to see it. (Consider the Warren Court)

Unnamed Co-Conspirator
Actually, I graduated from college more than 20 years ago. After graduate school and law school (at good schools, but not Ivy League) I had a fellowship to Cambridge University (that's in England). My perceptions of the folks from the lesser lights was based upon my perceptions as a former faculty member at one of those schools. I believe that my current boss would feel authentic regret if I tendered my resignation, but you can feel free to apply to Mr. Hewitt.

Others
Just to discourage yet another pointless thread: I know all about your nephew/cousin/best friend who went to Nowhere U. and is now a judge/law prof/partner in Big Firm. One of the best judges I ever met was one of these, as was my best friend when I served in a position in DC. I thought that I framed my post in terms of probabilities and to the extent that it was read otherwise I apologize.
10.26.2005 3:37am