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. 

Most Popular


Cold Brew’s Insidious Hegemony

Soon, many parts of the United States will be unbearably hot. Texans and Arizonans will be able to bake cookies on their car dashboards; the garbage on the streets of New York will be especially pungent; Washington will not only figuratively be a swamp. And all across America, coffee consumers will turn their ... Read More
National Security & Defense

The Warmonger Canard

Whatever the opposite of a rush to war is — a crawl to peace, maybe — America is in the middle of one. Since May 5, when John Bolton announced the accelerated deployment of the Abraham Lincoln carrier group to the Persian Gulf in response to intelligence of a possible Iranian attack, the press has been aflame ... Read More

The Merit of Merit-Based Immigration

Having chain-migrated his way into the White House and a little bit of political power, Donald Trump’s son-in-law is shopping around an immigration plan. And if you can get past the hilarious juxtaposition of the words “merit-based” and “Jared Kushner,” it’s a pretty good one. As things stand, the ... Read More
NR Webathon

We’ve Had Bill Barr’s Back

One of the more dismaying features of the national political debate lately is how casually and cynically Attorney General Bill Barr has been smeared. He is routinely compared to Roy Cohn on a cable-TV program that prides itself on assembling the most thoughtful and plugged-in political analysts and ... Read More
NR Webathon

Socialism Is about Taking, Not Giving

The snakiest of snake-oil pitches goes like this: Give us some of your freedom and we’ll take care of you. Socialists have been making similar claims back as far as Plato. The end result doesn’t have to be Venezuela. It can just be . . . Europe. What’s wrong with Europe? Despite a turn away from ... Read More