"I Know It When I See It"1

Pro-Miers lawyer/law professor/author/radio host/blogger Hugh Hewitt strolls down memory lane:

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.

Patterico's response (emphasis in original) is spot-on:

That’s exactly what I’m afraid of. In terms of results, Potter Stewart voted to uphold abortion rights and strike down the death penalty, to name two of his disappointing decisions. In terms of temperament, the way he went about making his decisions was often rooted in pure arrogance.

Nominated by President Eisenhower (a Republican), Justice Stewart was the O'Connor of the 60s and 70s; indeed, O'Connor succeeded to Stewart's chair in 1981. Like O'Connor, Stewart preferred narrow, fact-based rulings over wide-ranging precedent, famously exemplified by his definition of obscenity, quoted in the title.

Like O'Connor, Stewart also was a "political" justice. Noting that Stewart joined the majority in Roe v. Wade, 410 U.S. 113 (1973),² Patterico quotes The Brethren's account of Stewart's judicial philosophy:

Abortion was a political issue. Women were coming into their own, as Stewart learned from his daughter Harriet, a strong, independent woman. . . The public was ready for abortion reform.

Still, these were issues of the very sort that made Stewart uncomfortable. Precisely because of their political nature, the Court should avoid them. But [you knew there was a “but” coming, didn’t you? — [Patterico]] 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.

Yuk. For a half-century, conservatives dreamed of returning the Court to the founders' job description: interpreting law, not inventing policy. And like O'Connor, Stewart's policy-making decisions are poorly reasoned.

Hugh Hewitt is the best-known pro-Miers conservative. He was Assistant White House Counsel under President Reagan, and so knows the skills needed in Miers's present job. I admire and respect him. So it's revealing that Hewitt's "best guess" backing likens Miers to Potter Stewart.

Six years ago, Governor Bush explained how President Bush would vet judicial nominees:

[L]et me tell you what I'd like to know. I'd like to know are we compatible from a philosophical perspective on a wide range of issues. But the most important view I want to know is are you a strict constructionist, Mr. Jurist? Will you strictly interpret the Constitution or will you use your bench as a way to legislate?

As Patterico shows, Justice Stewart supported non-textual rights. And according to liberal lion Bob Woodward, Stewart embraced judicial legislation. If Harriet's the reincarnation of Potter, the President broke his promise. Hugh Hewitt's advocacy is the best evidence yet Hewitt's wrong.

Miers Oppositum Est.
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¹ Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring).

² Justice Stewart dissented when Griswold v. Connecticut, 381 U.S. 479, 484 (1965), read "emanations" from "penumbras" to establish an unwritten privacy right. Eight years later, Stewart signed both Blackmun's Roe majority and issued a concurring opinion explicitly basing the abortion right on Lochner-type non-textual extensions of the 14th Amendment's due process clause: "Griswold stands as one in a long line of pre-Skrupa cases decided under the doctrine of substantive due process, and I now accept it as such." Roe, 410 U.S. at 168.

Note: minor edits 9:30pm