Hugh Hewitt: Kool Aid drinker

His claims to being a big tent Republican to the contrary, Hewitt is advocating a purge of Republicans. At the very moment when Republicans should be cementing their majority in the face of divided and wandering Democrats, the Religious Right is demanding the whole cake. Attempts at a purge are going to result in primary fights around the country, and just like the contraversy in Michigan in 2000, McCain was in the right and Bush was over-reaching.

His description of the filibuster as a constitutional horror and a naked power grab is just wishful thinking. I also think Hewitt's reading of the blogoshpere is nothing more than listening to an echo chamber. There are plenty of people who prefer Republicans to Democrats who are plenty dubious about the agenda of the Religious Right, and they blog too. If Hewitt is accurate in so much as the Republican Primary process is captured by the Move-On's and Micheal Moores of the right, I hardly think that's a good thing. It hasn't done the left any good, and its not going to prove to be a winning strategy for Republicans.

Instead of putting forward Republicans who can hold the right as well as capturing moderates, Hewitt is advocating a strategy to push Republicans into the Democratic party. Is Jim Jeffords his philosopher's stone? Where is the Hugh of If Its Not Close, They Can't Cheat?

When it came to Arlen Spector, Hugh was right. On this list of "Seven Republicans", he's wrong.

He's not the only one, of course. Captain Ed had a great post just after the 2004 election called, Learning to be a Majority Party. More recently, his Not One Dime has been an effort to make Republicans more like the Democrats in their fund-raising as well.

The idea of a purge is a bad idea in its own right, but it supports an equally bad idea, stacking the court. The problem with this plan is that its based on a fundamentally misguided principle, that if we control the court, all the excesses of the court will magically go away. Wrong. The best case scenario that follows from a large number of court appointments is that the excesses of the court won't bother a lot of Republicans, because the excesses will be in areas where the party either agrees with the policy, or doesn't care. But that's just imposing bad government on the minority. Why not seek a policy that's good government in general. If as a matter of principle, the court errs when it over-reaches, why not restrict its powers? Ronald Reagan once said, government that has the power to give also has the power to take away. This was an argument for weak government, not merely our government.

Someone called in the final hour of Friday's Bill Bennett show. He read Federalist 66 as arguing that the Senate only had the authority to confirm the nominations of the President. This is true, but it misses the main point of Federalist 66, that the Senate sits as a court of impeachment. Its a lawyers reading, and is present-minded. Hamilton wrote, "It isimagined that [the Senate] would be too indulgent judges of the conduct of men, in whose official creation they had participated. The principle of this objection would condemn a practice, which is to be seen in all the State governments, if not in all the governments with which we are acquainted." Here is the problem, and Hamilton identified it: the reluctance to reign in the judiciary by removing judges.

Republicans have had the advantage in nominations to the court having a sitting President for five years (32.5 years compared to the Democrats 27.5 years) and far from having a slight edge in court rulings, or even an approximate equivilence, the judiciary is out of control and the result is a long train of abuses and usurpations. More nominations won't solve this problem, because its an abuse of office, not ideology. Judges are simply unelected and, without impeachment, unaccountable. Putting our people in the robes doesn't solve the unerlying problem. First, as I just mentioned, the best case is that there errors only offend the left. Second, is that Democrats will continue to get nominations, even if less frequently than Republicans. If Republicans were to get 36 of 60 years, leaving the Dems with 24, is it really likely that we'll get a substantially better judiciary than we did over the past 60 years?

The real problem in the courts is that they have usurped too much power from the legislature. Fix that problem and fix it in law. Putting conservative court justices won't fix the problem, it will just give us conservative legislation from the bench. How about legislation from the legislature?

Because the fundamental problem is not being addressed, the purge being advocated by the self-styled center-right won't fix the problem, but will more likely make it worse. It will throw power into the hands of the Democrats. In the case of court appointments, only the President and the Senate matter, so Republican control in the House is irrelevant (unless they withdraw power from the courts).

Proposal: The courts cannot rule by fiat, but can only send bad law back to the legislature for correction. Let's use old Federalist 66 as a guide. The courts can't make law, they can only accept or reject what the other branches have done. No more Lemon Test, no more Miller Test, no more Plessy v Ferguson's, or Swann v Charlotte-Mecklenburg's.