Bench Memos

Rewriting History

A few minutes ago, I did a radio-show piece with Slate’s Dahlia Lithwick, who voiced her hope that this confirmation process would be dignified and merits-based, and not involve the “dumpster-diving” and smear-tactics to which, she asserted, extremists on the left and the right have resorted in the past, etc.

Look for expressions of regret, and calls for seriousness, civility, and the like, in the days to come from President Obama’s surrogates in the press and in the activist groups.  You will have to look harder, though, for journalists to observe, and these surrogates to admit, that (a) the “let’s use Supreme Court nominations as occasions to smear good people” tactic is one that the Democrats — but not, in fact, the Republicans — have practiced enthusiastically; (b) that Justices Breyer and Ginsburg were easily confirmed, with substantial Republican support, not because they were “moderate,” but because the Republicans voted in accord with the “President gets his (qualified) nominees” standard; and (c) that dozens of Democratic senators, including the president, abandoned this standard (to the extent they ever respected it) and disgraced themselves by voting against Justice Alito and Chief Justice Roberts, easily among the most impressive nominees in history.

It also seems safe to predict that the press will, as they swoon over Judge Sotomayor’s personal story and Ivy League credentials, forget the extent to which Justice Thomas’s own story did not protect him from outrageous attacks, and his own prestigious degrees did not prevent snide insinuations that he was merely the beneficiary of affirmative action.

Oh, and I am just guessing that we will not hear any mutterings among those on the left about the nomination of (yet another) Roman Catholic.


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