Bench Memos

Richard Painter: Beyond the Pale

As Ed Whelan has so ably shown, Richard Painter’s HuffPo attack on him, concerning Ed’s spot-on criticisms of Goodwin Liu, is assiduously allergic to the facts about Liu.  And as John Yoo says, it would be more ethical if Painter would link to the specifics of Ed’s criticisms of Liu rather than (frequently) “misdescribing” them.  But I want to highlight something truly contemptible about Painter’s attack on Ed.  It’s this paragraph, near the beginning of his diatribe:

Liu is not the first nominee to go through a barrage of unfair attacks. Louis Brandeis, the first Jewish American to join the Supreme Court, had a nasty Senate confirmation hearing in 1916. The Clarence Thomas confirmation hearing was another debacle; Senators caricatured and attacked the nominee instead of discussing his ideas about judging. President George W. Bush’s nominee to the D.C. Circuit, Miguel Estrada, was attacked by critics who had preconceived notions about how a Hispanic jurist should think about the law. He eventually withdrew.

What do these three examples have in common?  Only their minority ethnic or racial status.  Brandeis “had a nasty Senate confirmation hearing” thanks to rank anti-Semitism.  Thomas memorably described his hearings, in their final phase, as a “high-tech lynching.”  And Painter himself attributes opposition to Estrada as grounded in “preconceived notions about how a Hispanic jurist should think.”

If Painter is not insinuating that Ed Whelan is an anti-Asian-American racist, then I don’t know how to read.  Ed is too nice to deign to notice this ugly smear, so I’ll say what he has a right to say: quite apart from the merits of the arguments for and against Goodwin Liu, Richard Painter owes Ed Whelan an apology for this paragraph.  He owes it now, and ungrudgingly, in public.

And for any of Painter’s defenders who don’t know how to read, the word “pale” in the metaphor “beyond the pale” is a noun that has nothing to do with anyone’s skin color.


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