Across the ideological spectrum, our political culture is infested by ill-founded grievance narratives. So I was disappointed to discover that Emma Green’s recent Atlantic article (“How Democrats Lost the Courts”) uncritically presents the Left’s grievance narrative on judicial confirmations—a narrative that conveniently neglects the eight years that preceded the Obama presidency. Indeed, it’s often difficult to tell when Green is recounting the Left’s narrative and when she is embracing it as her own.
A few examples:
1. Green begins her article by recalling the defeat of President Obama’s nomination of Goodwin Liu to the Ninth Circuit. She observes that “Republicans set the narrative on Liu,” but she gives no hint of the comprehensive and compelling evidence that supported that narrative (evidence that I summarized in this article). She says that Democrats “tell a story about Republican bad faith and foul play,” but she provides no evidence of either. She contends that “Liu’s nomination languished, held hostage … by Republican procedural maneuvers,” but the “Republican procedural maneuver” she is complaining about is the filibuster that Senate Democrats unleashed in judicial-confirmation battles in 2003. In other words, Liu was hoist on the Democrats’ petard. What’s more, Democratic senator Ben Nelson joined Republicans in voting against cloture on Liu (and it’s also not clear that Liu would have won a straight up-or-down vote, as I discuss in point 4 here).
2. Green writes:
When Democrats recite the parable of Goodwin Liu, they tell a story about Republican bad faith and foul play, but also one of their own failures. Progressives have largely ceded the judiciary to conservatives. Republicans have long been engaged in total warfare on the courts. They see liberal courts as an existential threat to the conservative project, and they have responded accordingly, building a well-funded machine to get true believers confirmed as judges. For years, Democrats never built an equal and opposite infrastructure for installing progressives on the federal bench.
Are the final four sentences of this paragraph merely Green’s recounting of the Left’s narrative? Or do some or all of them reflect her own view? How is the reader to know?
Ditto for Green’s laughable statement in the next paragraph that Democrats “have clung to norms Republicans long ago abandoned.” In any event, shouldn’t the Atlantic’s readers be informed or reminded that it was Democrats who launched the unprecedented campaign of partisan filibusters against George W. Bush’s appellate-court nominees? That it was Senate Democratic leader Harry Reid—thank you, Harry!—who pushed his fellow Democrats to abolish the filibuster for lower-court nominations in November 2013 and thus paved the way for Donald Trump’s successes? (Never mind that Senate Republicans had defeated a grand total of seven cloture motions on President Obama’s nominees, while Reid himself had voted against cloture at least 25 times on 13 different nominees of George W. Bush.) That it was Joe Biden way back in 1992 and Chuck Schumer in 2007 who threatened to prevent an election-year confirmation of a Supreme Court candidate nominated by an opposite-party president? (Green’s later assertions that Republicans “had done away with” the blue-slip process during the Bush 43 presidency and “started filibustering even [Obama’s] district-court nominees” are also very wrong.)
3. Green presents Obama’s first appellate nominee David Hamilton as “a centrist judge from Indiana who was a preacher’s son” and posits that the Obama administration thought that “Republicans wouldn’t be able to find anything objectionable in his record.” This is sheer hooey. Before becoming a district judge, Hamilton was an ACLU activist. As a district judge, he had an extraordinary seven-year-long series of rulings obstructing Indiana’s implementation of its law providing for informed consent on abortion—and received a strong rebuke from the Seventh Circuit for his obstruction. That help explains why the Obama White House nominated him, and it equally helps explain why many Senate Republicans opposed his nomination.
4. Green lauds former senator Russ Feingold, now head of the American Constitution Society, as a “norms guy, through and through.” Oh, please. Feingold supported the Democrats’ launch of their unprecedented campaign of partisan filibusters, and he voted against cloture some 26 times on 13 appellate nominees. He voted to filibuster Samuel Alito’s nomination to the Supreme Court in 2006, and he called on Senate Democrats to filibuster Neil Gorsuch’s nomination in 2017. Gee, that’s sure some “norms guy.”
Green does have one paragraph late in her piece that quotes conservatives who “have little sympathy for the left’s narrative about Republican intransigence.” But that lone paragraph barely offsets her indulgence of that narrative.