Bench Memos

Law & the Courts

Greenhouse’s Distorted History

In her online column today, Linda Greenhouse, in criticizing the Senate Republicans’ response to the Merrick Garland nomination, asserts, “It is only by a distorted view of history that the Bork battle can be said to have ushered in or authorized flat-out obstruction of a Supreme Court nomination.” But it is Greenhouse who is offering the distorted view of history, as she ignores major pieces of evidence that are contrary to her thesis. Consider:

1. In the original version of her piece, Greenhouse wrote:

The Bork battle remains the outlier, not the standard. Judge Bork, let’s not forget, got a hearing, a committee vote, and a floor vote. Months after defeating the Bork nomination by a bipartisan vote of 58 opposed to 42 in favor, the Democratic-controlled Senate voted 97 to 0, a month into the 1988 presidential election year, to confirm Anthony M. Kennedy to the seat Judge Bork was to have filled. The next two Supreme Court nominees, Ruth Bader Ginsburg in 1993 and Stephen G. Breyer the next year, were confirmed by votes of 96 to 3 and 87 to 9. [Emphasis added.]

Legal reporter Mike Sacks aptly tweeted: “I mean I can see how she forgot Souter, but how could she forget THE CLARENCE THOMAS CONFIRMATION HEARINGS?”

2. Greenhouse has now revised the erroneous sentence to read:

President Bill Clinton’s two Supreme Court nominees, Ruth Bader Ginsburg in 1993 and Stephen G. Breyer the next year, were confirmed by votes of 96 to 3 and 87 to 9. 

While the sentence is no longer factually wrong, Greenhouse still somehow completely passes over the Thomas confirmation battle.

3. Greenhouse doesn’t bother to mention that “flat-out obstruction of a Supreme Court nomination” is exactly the course of conduct that then-Senate Judiciary Committee chairman Joe Biden threatened way back in 1992.

4. Earth to Greenhouse: The fact that Senate Republicans did not fight the Ginsburg and Breyer nominations is not evidence for the proposition that Senate Democrats wouldn’t have obstructed any further Supreme Court nominations by President George H.W. Bush if he had been re-elected and had been the one making the nominations in 1993 and 1994. (Unlike the liberal base, the conservative base hadn’t yet mobilized on Supreme Court nominations.)

5. Greenhouse doesn’t mention the effort by Senate Democrats (including Barack Obama and Joe Biden) in January 2006 to filibuster the Supreme Court nomination of Samuel Alito.

6. Greenhouse also doesn’t mention Senator Chuck Schumer’s threat in July 2007 not to confirm another Supreme Court nominee of George W. Bush’s “except in extraordinary circumstances.”

More broadly, Greenhouse implausibly positions herself as a defender of the “rule of law.” She asserts that the rule of law “provides confidence that what is true today will still be true tomorrow.” But that proposition, taken seriously, explains why originalism is consistent with the rule of law and why the “living Constitution” approach of liberal judicial activism that Greenhouse applauds isn’t.

It’s telling that Greenhouse instead says of the rule of law, “we know it when we see it.” The rule of law means nothing if it’s only what Greenhouse is willing to see. 

Ed Whelan — Ed Whelan is a leading commentator on nominations to the Supreme Court and the lower courts and on issues of constitutional law.

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