Bench Memos

Lithwick’s Tizzy

Poor Dahlia Lithwick is having a tizzy over Senate Republicans, who, she says, are “revers[ing], rewrit[ing], or undermin[ing] every rule and standard [they’ve] ever laid out for measuring the fitness of a presidential nominee.” In short, Lithwick alleges that Senate Republicans are engaged in the same sort of “staggering” “hypocrisy” that Lithwick herself is committing (as Jonathan Adler discussed in this recent post). Given Lithwick’s frequent shtick of substituting hyperbole for argument, it’s difficult to be sure when she actually means what she says, so instead of addressing her blanket assertion, let’s take a look at the subordinate arguments that Lithwick offers.

1.  Lithwick contends that “Senate Republicans who, four short years ago, condemned the use of the filibuster as ‘unconstitutional’ and threatened to answer it with the ‘nuclear option’ are now earnestly pledging to filibuster President Obama’s judicial nominees.”  Lithwick’s contention is defective in at least two respects. 

First, Senate Republicans have threatened the use of the filibuster to preserve the blue-slip privilege, not to block Obama’s judicial nominees. In other words, if Judiciary Committee chairman Leahy affords Senate Republicans the same blue-slip privilege that Democrats successfully extracted from former chairman Specter, then the filibuster threat in the letter vanishes.

Second, if Senate Republicans had succeeded in persuading Democrats not to resort to the filibuster to block President Bush’s judicial nominees, then it would be hypocritical if Republicans were to resort to the filibuster in order to block President Obama’s judicial nominees. But Republicans failed to so persuade Democrats. Is it really fair, now that Democrats have deviated from or permanently changed the Senate practice, to label Republicans hypocrites if they now employ a practice they tried to prevent? Must they engage in unilateral disarmament? By analogy, consider whether, say, a senator who believes that Congress’s Commerce Clause power is narrower than the Supreme Court has construed it to be is hypocritical if he offers legislation that depends on the operative legal framework? (I set aside here the separate question—see my “First” point here—of the extent to which various Senate Republicans actually adopted the unsound position that the filibuster is unconstitutional.) I’ll add that I believe that there remain weighty arguments against resorting to the filibuster for the purpose of blocking judicial nominees (mostly premised on the understanding/hope that the longstanding practice that Democrats deviated from can be restored).

2.  Lithwick complains that Senate Republicans “rough[ed] up” Solicitor General nominee Elena Kagan when 31 of them voted yesterday against her confirmation.  Lithwick writes:

So what is it that Kagan is being hassled about by Republicans on the judiciary committee? Her failure to provide sufficient information about her ideological views.

I’ve addressed Kagan’s insufficient responses here, here, here, and here. (I didn’t have time before yesterday’s vote to write about Kagan’s submission Wednesday afternoon.) To sum it up, Kagan drew implausible lines of supposed principle that she inconsistently adhered to and then abandoned. Beyond simply asserting that Kagan “answered” the questions, Lithwick claims that Senator Specter has taken a different approach to Kagan than he took to Supreme Court nominee Samuel Alito. But whatever the merits of the competing positions over the proper scope of inquiry of judicial nominees, the concerns over judicial independence and judicial impartiality have no role in the context of executive-branch nominees. (And it’s particularly galling that Kagan, who argued for the Senate to engage in more rigorous exploration of the legal views of Supreme Court nominees, tried to transform her confirmation hearing for a senior position in DOJ into the same “vacuity and farce” that she had decried.)

Lithwick’s initial account of the supposedly singular procedural reason for Republican opposition to Kagan is also mistaken, as the reader learns only five paragraphs later when, in the midst of discussing OLC nominee Dawn Johnsen, Lithwick finally gives a hint of the substantive grounds on which many Republicans opposed Kagan:

Kagan’s great sin is that she once signed onto a brief opposing the presence of military recruiters on law school campuses, since their anti-gay policies violated school anti-discrimination rules.

In fact, beyond signing a brief (which garnered zero votes in the Supreme Court), Kagan, as part of her vigorous opposition to the Solomon Amendment, excluded military recruiters from the Harvard Law School (when she thought she could do so without jeopardizing the flow of federal funds to Harvard) and labeled the federal “Don’t Ask, Don’t Tell” law “a profound wrong” and “a moral injustice of the first order.” Her extremist actions and rhetoric raise plenty of ground for legitimate concern over whether and how she would defend the Solomon Amendment and the Defense of Marriage Act—and over her regard for the military’s judgment.

3.  Lithwick claims that the sole cause of Senate Republican concern (and of National Review “frothing”) over OLC nominee Dawn Johnsen is a footnote in a 20-year-old brief.  But that footnote is just one part of the broader record that Andy McCarthy highlighted in the essay that Lithwick links to but misrepresents, and it was Johnsen’s Clintonesque denial of her position that led to unusual focus on that footnote.

Lithwick states:

Ted Olson gave legal advice to the Arkansas project, but he was confirmed as solicitor general. Dawn Johnson [sic] dropped a footnote in a brief, and she’s a raging ideologue.

The second sentence grossly distorts and understates the grounds of criticism of Johnsen, and the first sentence obscures from the reader that Olson faced a much more contentious confirmation battle than Johnsen and was ultimately confirmed by a 51-47 vote. Especially given the fact that Olson’s appellate experience when he was nominated infinitely (literally) dwarfed that of Kagan (who has never argued a single appeal, in the Supreme Court or elsewhere), it’s strange that Lithwick is complaining that 31 senators “rough[ed] up” Kagan by voting against her.

I also find it amusing that Lithwick, who fancies herself quite a humorist, still doesn’t recognize that a quip that John Roberts made in 1985 was a joke about lawyers rather than a disparaging comment about women.  Even the New York Times got the joke.

4.  Lithwick finds it puzzling that “20 years ago, Dawn Johnsen voiced support for abortion—which was legal—and that makes her an activist, whereas 20 years ago Samuel Alito voiced opposition to abortion—which was, still, legal—and that makes him a great constitutional minimalist.” Let me explain the puzzle (though I don’t care for the “minimalist” term). Roe was an indefensible and illegitimate exercise of judicial activism—an unconstitutional incursion by the Supreme Court on the realm of representative government. To defend and to seek to perpetuate that power grab is activist. To oppose it and to seek to undo it is to support a Court that practices proper judicial restraint.

[Amplification:  Some readers have evidently (and understandably) misunderstood my point 4, so let me clarify it.  Lithwick finds it puzzling that the term “activist” could be applied to someone who embraced then-existing case law on abortion.  My point is that the terms “judicial activism” and “judicial restraint” draw their meaning primarily from separation-of-powers principles (rather than from the intrajudicial doctrine of stare decisis).  Therefore, it shouldn’t be puzzling that those who regard Roe as indefensible and illegitimate view supporters of Roe as supporters of judicial activism.  (I did not mean by my point 4 to present an argument for Roe’s illegitimacy, though I’d refer interested readers to my 2005 Senate testimony on the matter.)]

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