Bench Memos

Law & the Courts

Stone-d Out of His Mind?

So apparently some Senate Democrats held a mock hearing yesterday, the sort of farce that would earn the attention only of someone like the Washington Post’s Dana Milbank, who, shameless propagandist that he is, has the gall to pretend to take the farce seriously and even to mislabel as a “farce” the Republican opposition to filling the vacancy. Even then, a pang of a not entirely extinguished conscience leads Milbank near the end of his folly to acknowledge that then-Senator Biden “in 1992 took a position very similar to the current Republican stance.” He might also have added that so did Senator Chuck Schumer in mid-2007.

Law professor Geoffrey Stone, whose amazing partisan hackery I have taken note of before, was one of those meeting with the 13 Democrats who took part in the charade. Playing political scientist, Stone purported to discern a practice under which “the Senate always defers to the president as long as the president puts forth nominees who are clearly qualified and who are reasonably moderate in their views.” Stone specifically cited Justice Samuel Alito as one such nominee.

One problem is that Stone, the pseudo-political scientist, is at war with Stone, the political activist—the same Stone, that is, who urged the Senate in 2006 not to confirm the Alito nomination. And consider what Stone said back then in defense of his call for the Senate to defeat the Alito nomination (his italics, my underlining):

A Supreme Court nomination is, and always has been, a political process. The president seeks to appoint justices whose views he wants represented on the Court, and members of the Senate are free to reject nominees if they disagree with those views. For practical reasons, senators usually give presidents the benefit of the doubt. Otherwise, the nomination and confirmation process could become paralyzed. But there is a limit to how far that benefit of the doubt should go. If a president is making highly politicized nominations, or if the circumstances in the country or on the Court make the confirmation of a particular nominee especially troubling, senators are likely to give less deference to the president’s choices, and that is perfectly appropriate. That is how the process has worked historically, and it is how it should work.

Stone was presenting his schlock social science yesterday to an audience that included senators, like Schumer and Dick Durbin, who clearly would have been among the leaders of Democratic obstruction to a Bush 43 nomination to the Supreme Court in 2008. Needless to say, Stone made no mention of Biden’s 1992 statement or of Schumer’s 2007 statement.

Further signs of Stone’s derangement are his insipid assertions that the Republican opposition to any nomination is “unconscionable,” “directly incompatible with their solemn responsibilities under the United States Constitution,” and—get this!—“an action morally and legally on a par with the Southern Manifesto” (the 1956 document that opposed racial integration of public places). 

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