On the Air With Hugh Hewitt

By Ed Leibowitz
     
In the rough-and-tumble world of talk radio, Hugh Hewitt is certainly not the only conservative lawyer with his own show. Former education secretary William Bennett, for one, boasts a law degree from Harvard and hosts Bill Bennett's Morning in America. And Laura Ingraham was a white-collar criminal-defense attorney at Skadden, Arps, Slate, Meagher & Flom before she launched The Laura Ingraham Show. Unlike Bennett, Ingraham, and others, though, Hewitt maintains an active law practice. In fact, as a founding partner at Hewitt & O'Neill in Irvine, he's made a pretty good living over the years helping developers break ground on habitats populated by kangaroo rats, gnatcatchers, Pacific pocket mice, fairy shrimps, and other thought-to-be-endangered creatures.
      Hewitt is also a constitutional law professor. And just in time for the 2008 presidential election, he has a new book out-his eighth. A paean to ex-Massachusetts governor Mitt Romney, it's called A Mormon in the White House? 10 Things Every American Should Know about Mitt Romney.
      But for all of the balls that Hewitt manages to keep in the air, it's what he does on the air that has most come to define him. His show, carried weekdays on 139 AM stations throughout the country on the Salem Communications network, draws as many as 2 million listeners each week. "I was a lawyer with a condo in journalism," says the 51-year-old midwesterner, who sports a pair of George Will?style wire-rimmed glasses. "Now," he says, "I'm a journalist with a condo in law."
      As the affable host of the Hugh Hewitt Show, he spends every weekday afternoon from 3 to 6 p.m. in a cramped studio. He spars with liberals, schmoozes Republican presidential candidates, and otherwise holds court to advance his conservative worldview. His desk overflows with books, papers, and boxes of allergy medicine. On the wall, oddly enough, is a white-and-blue "Hillary" campaign placard?a gift from a guy Hewitt roomed with in college who's a big Clinton fan, he explains. Looking at the news clippings he has posted around him, though, you'd be hard pressed to find any evidence of setbacks in the Iraq war or the Bush presidency. There's the Los Angeles Times front page declaring George W. Bush's victory in 2000. There's the Vanity Fair photo spread of the president surrounded by his national security team?Cheney, Rumsfeld, Rice, and Powell?in 2002. And there's a 2004 Sports Illustrated cover commemorating Pat Tillman, the Arizona Cardinals football player who joined the Army after 9/11 and was subsequently killed in Afghanistan. (Initially, it was reported that Tillman died as a result of enemy fire, but Pentagon sources later acknowledged it was a friendly-fire incident and that certain officers had tried to cover it up?developments that Hewitt says he decided not to talk about on the air in deference to Tillman's family.)
      One of Hewitt's favorite guests is John Eastman, a kindred spirit?at least ideologically?who also happens to be the dean of the Chapman University School of Law in Irvine, where Hewitt teaches. Another regular on the show is Erwin Chemerinsky, a liberal constitutional law professor at Duke University soon to be the founding dean of UC Irvine's new law school. Together, Chemerinsky and Eastman appear on a weekly segment that Hewitt calls "The Smart Guys," which by talk radio standards is strikingly highbrow.
      In one broadcast, for example, Hewitt invites the two to talk about the Alien Tort Claims Act as it pertains to a suit that Chemerinsky was working on at the time against Caterpillar for selling house-crushing bulldozers to Israel. Four years ago, Israeli security personnel driving one of the bulldozers killed Rachel Corrie, an American activist in the occupied West Bank. The case, which Chemerinsky argued in the Ninth Circuit, did garner some coverage in the left-wing press, but there had hardly been much trenchant legal analysis?until now.
      "Caterpillar sold 60-ton bulldozers to Israel knowing that they were being used in violation of international law, and that caused the death of innocent people," Chemerinsky tells Hewitt. "And the question is whether Caterpillar can be held liable under the Alien Tort Claims Act, under the Torture Victim Protection Act, and under tort law claims."
      Chemerinsky then goes on to explain how the federal courts have jurisdiction for torts committed in violation of the law of nations, how the U.S. Supreme Court affirmed the Alien Tort Claims Act's viability for violations of "specific, universal, and obligatory norms of rules of law," and how the Ninth Circuit determined that the Supreme Court's ruling includes war crimes.
      "Now, John Eastman," Hewitt interjects, his nasal tenor voice betraying plenty of skepticism, "my experience with the Alien Tort Claims Act goes back to my time clerking on the D.C. Circuit in a case where Palestinian terrorists attacked and killed Jews, and Americans and Jews from abroad wanted to use our courts, and it ended up being a total mess. What do you make of cases like Erwin's, and don't you think the political question doctrine?and you might want to explain what that is?exists for situations just like this one?"
      "I don't know about Erwin's case to get into the particulars of it," Eastman admits, "but there is a doctrine that says that even if the courts have the authority to weigh in jurisdictionally, sometimes the political branches are the more appropriate branches for resolving such things, and the courts will find a way to essentially take a pass on deciding the case."
      Alien Tort Claims Act? Political question doctrine? Specific, universal, and obligatory norms? Could the Custom Comfort Mattress Company, the Mortgage Minute Guy, the eFax email services company, and a dozen other major Hugh Hewitt Show sponsors actually be buying advertising time against such a discussion?
      To be sure, the Smart Guys segment is as arcane as Hewitt usually allows his program to get?which leaves him plenty of broadcast time to dish out a generous helping of meat-and-potatoes conservatism, whether it is fervent support for the war in Iraq or a trashing of the liberal press. Recent guests have included General David Petraeus, a surprisingly jingoistic Jon Voight, and, of course, presidential contenders such as Romney and Rudy Giuliani. At the end of each week, he has an attorney acquaintance known only as "Emmett of the Unblinking Eye" join the program to rate movie trailers for upcoming attractions, and to argue such burning questions as: Does Mel Brooks's Spaceballs qualify as one of the top parody movies of all time?
      All the same, Hewitt prides himself in setting a more elevated tone than such right-wing firebrands as Michael Savage and other "pot-and-pan bangers." And in talk radio, that's no small feat.
     
      Warren, Ohio, where Hewitt was raised, is a solidly Democratic town where politics historically have been dominated by the United Auto Workers. Hewitt's father was a Republican, practicing insurance law mostly on behalf of large companies, but Hewitt remembers the family as being fairly apolitical. Hugh, though, was drawn to politics. He became a strident anticommunist by the eighth grade after reading Aleksandr Solzhenitsyn's One Day in the Life of Ivan Denisovich. From despising the Soviet state, he segued into staunch conservatism and Republican partisanship. As an undergraduate at Harvard, Hewitt decided he didn't have the makings of a political theorist, so he contemplated a role closer to the trenches. "I thought the law was a nifty thing," he says. "And the law intersected with politics, so by the time I got out of college, I thought that law was the next necessary step on my way to Washington to do something."
      As it turned out, Hewitt's top two choices for law school?the University of Michigan and Harvard?rejected him. So, his political apprenticeship would come first.
      It began when the father of a college friend introduced him to Ray Price, Richard Nixon's former speechwriter. Before long, Hewitt was working with the ex-president in both New York and San Clemente as a researcher and editor of Nixon's book The Real War. From Nixon, he says, "I know how history is made, and it isn't pretty, and I know that most people are trying their hardest to do the right thing."
      After his apprenticeship, Hewitt again applied to Michigan and this time was accepted. When he graduated in 1983, he was hired as a clerk for the D.C. Circuit, working a couple of weeks for Antonin Scalia and a couple for Robert Bork. He moved on to a special assistant's job with U.S. Attorney General William French Smith, then on to the White House Counsel's office, where he served alongside future Chief Justice John Roberts. As player-coach of perhaps the worst intramural basketball team in the Alexandria, Virginia, league, he goaded Roberts on to something less than greatness. "The chief justice," Hewitt recalls, "was at least not afraid to shoot." Should he have been? "I may someday have to appear before the Court," Hewitt demurs.
      Returning to Southern California in 1989 at Nixon's request, Hewitt began overseeing construction of the Richard M. Nixon Library and Birthplace. Prior to the grand opening, Hewitt caused a stir with some Nixonian behavior of his own: According to Los Angeles Times reporter Catherine Gewertz, he indicated that the library's prospective researchers would "absolutely, certainly" be screened for the bent and content of the work they were pursuing. "I don't think we'd ever open the doors to Bob Woodward," Hewitt was quoted as saying. "He's not a responsible journalist." Amid the front-page furor, Nixon issued a statement saying that everyone, including Woodward, would be welcome. Today, Hewitt says he was joking when he mentioned Woodward, and he denies saying anything about a screening policy. (Gewertz, who is now an assistant editor for Education Week, recalls the incident differently. "Hugh and I had a serious discussion, at some length ... and we printed his comments accordingly," she writes in a recent email. "It's a bit self-serving for him to claim misrepresentation 17 years after the story ran, when he never mentioned it at the time.")
      By Hewitt's own account, his rapport with the press was actually quite good. In fact, one radio reporter was so taken by Hewitt's weekly press briefings at the Nixon center that he told his station manager Hewitt had talk-show host potential. Within a year, Hewitt was on the air, and by 1992 he had been hired as the conservative cohost for a show called Life & Times, which aired on KCET, a Los Angeles?based public television station. (He kept that gig for almost a decade.) All the while, he continued to build his legal practice, siding with developers in environmental disputes.
      But that didn't make him a foe of wildlife, he maintains. In fact, he argues that he has worked more effectively for the environment than either meddling state agencies or outraged environmentalists. "I do believe that Republicans are conservationists," he says, "that there are superior ways of preserving species and property rights that will come from the center right, as opposed to the hard left, because the hard left does not care for property rights. And the only way to serve both the needs of the endangered species and the property rights of the landowner is to honor both of them."
      Of course, many environmentalists have a different take. Joel Reynolds, senior attorney for the Natural Resources Defense Council, has sparred with Hewitt both on the radio and in the editorial pages of the Los Angeles Times. "The fact is that developers have owned Southern California for a very long time," he says. "The result is that we're in the midst of an extinction crisis for most of the species that have historically inhabited this region. So if that's a reflection of that deep affection that he and his clients have for species, then the future of our natural resources in this area is very bleak."
      In Hewitt's multiple careers, there is some overlap. In the midst of last year's immigration-reform debate, for example, some members of Congress actually sought his help to craft amendments for the legislation, which ultimately failed. Also, as Eastman, Chapman's dean, has observed, Hewitt's legal and journalistic pursuits have a way of reinforcing each other. He notes that Hewitt's classroom work helps him stay current on constitutional issues of the day, which make their way into segments of his radio program.
      The two men obviously have a close working relationship. In fact, when Eastman was named dean last summer, Hewitt felt comfortable enough to ask him for a raise on the air. At the same time, Eastman felt comfortable enough to say no.
      Chemerinsky's relationship with the conservative talk-show host?which began when he was an occasional guest on Hewitt's TV show, Life & Times?is also exceedingly cordial, despite their ideological differences. "I have the highest regard for Hugh," says Chemerinsky. "I just think that he's everything we would want in a talk-show host."
      Although Hewitt often confronts guests on his program with evidence culled from books they've written or actions they've taken, he insists that his interview style has little to do with his legal skills. "My methodical approach is not cross-examination," he maintains. "People often think that, but it hasn't anything to do with it. I can't force anyone to answer," he says. "A judge will not intervene. If an interview gets away from you, it's gone. People hang up on you, as people have."
      Still, as the host of his own radio program, Hewitt has advantages that a lawyer in a courtroom never would. For one, he operates as both judge and prosecutor, and he gets to make his case before a largely friendly audience rather than a jury. Moreover, long after his most contentious guests have signed off, he is free to ridicule their logic. And he sometimes does.
      As a broadcaster, though, Hewitt credits his legal background with giving him a finely attuned BS meter. "Being a constitutional law professor," he says, "I am aware of the controversies, and you can't tell me something that is manifestly not true. You can argue a point with me, but you're not going to get away with telling me, for example, that the government can take every weapon away. I've had this debate often on TV over whether the Second Amendment is about militias. Well no, it's not, the standard rights model is widely accepted?even Lawrence Tribe says it is?so please don't push that crap here, because we don't have time for it."
     
      Late into the broadcast one Friday afternoon, after a plum interview with Mitt Romney and a conversation with Beltway Boy Morton Kondracke, Republican Congressman John Campbell from Orange County shows up for his regular visit to Hewitt's studio. After a genial discussion about what Congress is up to, Hewitt asks him about a recent Wall Street Journal article on plaintiffs who are seeking class action status against the pet food companies whose tainted products poisoned their dogs and cats.
      "I have an opinion of class action suits, just in general," Campbell says. "I mean, I think the abuse of class action suits all across the legal board is huge in all kinds of things."
      But Hewitt wants to talk specifically about this case. "I would not have class action suits for pets, absolutely not?not ever, never, because it's a unique relationship that ought to be judged on a case-by-case basis," Hewitt says. "If a seeing-eye dog goes down because you poisoned it, there's some damage there. If Fluffy the cat goes down, and Fluffy is a hundred years old ...
      "Can a cat be worth $50,000?" Hewitt asks.
      "Economically, no," Campbell tells him, "but emotionally, I don't know."
      Having stumbled onto a feline-loving soft spot in a politician with otherwise impeccable conservative credentials, Hewitt wraps up the interview. "To be continued," he says. Then, turning to his guest with a twinkle in his eye, he delivers a fair warning. "You're walking the edge of a cat-love chasm here," he tells him. "You better research this."
     
      Ed Leibowitz is a writer-at-large for Los Angeles Magazine.
     

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