By Dan Markel, Ethan Leib, Rick Garnett, Matt Bodie, Paul Horwitz , Steve Vladeck, and Orly Lobel
Rick has posted a well-written comment on the National Review's Bench Memos blog, which I've already had occasion to speak ill of once today. I stand by that, by the way, not because it's conservative but because I think too many of the bloggers there are reflexive, rabid, and, well, silly -- Rick (and a perfectly fair post by Gerard Bradley) excluded. As always, I don't think such traits are exclusive to the right, and that's why I rarely read either NRO or its mirror-image blogs on the left. But my writing about Wendy Long sent me back there, and I ran across Rick's post. He writes, in substantial part:
Look for expressions of regret [over potential smear tactics], 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.
Let me add some qualifications to Rick's observations. First, I agree with him that the Democrats have used Supreme Court nominations -- and lower court nominations! -- to smear what I would call "good people." This I think is a symptom of what I wrote about earlier -- that because most nominees are reasonably qualified, and most debates over nominees are really about broader substantive questions, we often turn to precisely these kinds of questions. But I would point out that, in the post-Bork era, we have had only two (and now three) Supreme Court nominees appointed by Democrats, so it's a little early for Rick to assume that his brethren will refrain from similar behavior; moreover, if they do, I hope he will point out to them (at Bench Memos, not on Prawfsblawg!) that "tit for tat" is not a morally sound justification for what he seems to believe is immoral conduct. Also, I would remind Rick that "impeach Earl Warren," the attacks on Abe Fortas (factually justified, but that does not mean the attackers' motives were pure), and loud whispers about William Douglas's multiple marriages were not Democratic tactics. I would also say that I cannot say with certainty whether or not Republican senators have been equally fair-minded toward Democratic lower court nominees in the past 16 years (I know the Democrats have played hardball with GOP lower-court nominees over the same period!), and given the low number of high court nominees put forward by the Democrats in that period, his moral account will be incomplete without considering this too. Finally, I would also point out to Rick that by focusing on Republican attacks on Democratic nominees in arguing that Republicans play fair with nominees and Democrats don't, he is ignoring a key Republican tendency -- the tendency of the party, especially its right wing, to attack itself like an autoimmune disorder. To the proposition that Republicans don't play dirty pool with Supreme Court nominees, I would add the pert rejoinder: Harriet Miers.
On his point (b), I agree with him that it is foolish to call Breyer or Ginsburg moderates -- largely because, and I would have thought Rick would agree, terms like moderate are largely unhelpful in this context. In many ways both nominees were quite liberal; in other ways they were somewhat conservative; in still other ways they were "moderates," in the sense that both were technicians and technocrats rather than Douglas-style judges. But I take it that Rick agrees with the old saw that the legislature is a they, not an it, and that it is difficult to divine the motives of individual legislators from their votes, or even, indeed, from their actual statements. So I would be less quick than Rick to draw any conclusions, one way or another, about why the Republicans voted as they did on Ginsburg or Breyer. I assume one reason was that some of them thought such a vote would backfire, that another is that some of them had other places where they wanted to spend their political capital, that another is the one Rick suggested (let the President have his nominee) -- and that still other GOP senators actually did think both nominees were "moderate." I am not qualified to say. I am amused, both about Rick and most certainly about myself, that we are both probably trading our usual positions about the value of legislative history! In any event, I'm not sure why Rick assumes that "let the President have his nominees" is, in fact, the standard all the GOP senators have adopted (whether or not they have said so publicly). And I'm also not sure whether it's the right standard.
Similarly, on his point (c), while I don't doubt that some or many Democrats have indeed voiced this standard, and that some or many of them haven't lived up to it, I would be less confident saying it about them en masse. While I haven't canvassed all of his statements and wouldn't be surprised if he hasn't always been so candid, certainly, say, Senator Schumer was up-front about stating that ideology may validly play a role in supporting or opposing a nominee. For a Senator who believes that this is true and who acts on such a belief -- and I wish more Senators on both sides were willing to do so openly! -- voting against even a qualified nominee on ideological grounds is no "disgrace," although it may be wrong or foolish. As I suggested earlier, I would far rather see those kinds of votes and discussions than see people play shell games about who is "qualified" for such a position, or see them make the usually phony argument that they are only willing to give the President deference for non-extreme nominees, but that this nominee happens to be a rabid extremist. Democratic Senators, including Obama, said this kind of thing about both Roberts and Alito, and I generally thought it was nonsense, so I can agree there with Rick. Most of the writers on Bench Memos have already said the same thing about Sotomayor today. I trust that Rick agrees with me that this is also nonsense, and that it would be equally "disgraceful" coming from a Republican senator as it is coming from, say, Kathryn Jean Lopez, Michael Greve, or Roger Clegg, to take just a few examples of people who have said egregiously silly things on Bench Memos today. Finally, a slight, slight modification. The vote against Alito was too high, in my view, and it was "dozens" (although, again, that doesn't mean all of those votes were either hypocritical or disgraceful; they could have been wrong, but that's not the same thing). The vote against Roberts was also too high, but it was not "dozens"; it was less than two dozen. And will Rick give the Democrats of a few scant years ago, as history counts, it, corresponding credit for Scalia and Kennedy, both confirmed by unanimous vote?
Finally, on Thomas, I agree with him that, leaving aside the press for a second, people tend to swoon more over biographical details when they are also in ideological sympathy with the biographical subject, and to ignore or question them when they are not. Sometimes the skeptics raise valid questions about these individuals! But the point is that we are rarely skeptical about such things when we are predisposed to like the individual in question, and more often skeptical of or simply willing to ignore these stories when we're predisposed against that person. But I would suggest that Rick is himself indulging in a little rewriting of history. (This is the title of his post.) A good deal of the early media script did indeed focus on exactly the "Pin Point" narrative that he's talking about here, and this no doubt was part of the Bush White House's selling job on Thomas. Indeed, for me part of the tragic lesson of the Thomas nomination, whatever the truth of the underlying charges, is that when the other party presents a viable nominee with a good story and neither side wants to talk about their broader substantive disagreements, the opposition will go digging for ways to paint the nominee as a devil. (And the nominating party will be equally disposed, sometimes equally foolishly, to insist that the nominee is actually a saint.) That is just not a healthy process. But for what it's worth, I guarantee Rick that some Republicans, whether actual senators or, more likely, staff members (and former staff members -- hello, Manuel Miranda!) and talk-radio types, will either ignore Sotomayor's compelling story -- they certainly won't spend all their time talking it up! -- or questioning whether she deserved to get into Princeton in the first place, or will simply adopt the Thomas strategy of looking for other dirt. (Indeed, there's some fool over on the VC comments page right now insisting that he'd pay good money to see how low her LSAT scores were.) I do tend to agree with Rick that many members of the mainstream media are liberal in their personal orientation and that this can bleed into their work in detrimental ways. But I assure him that Fox News, at least, will adopt something like the approach I've talked about.
On hearing that I was writing this, my wife said to me that Rick would "break up with me." So let me say that despite any of our differences, Rick is simply one of my favorite people in the legal academy, both personally and in his work and his actions. I love you, man! But I can't see eye to eye with you on this one. Again, I think we'd be better off disagreeing over the real substance of our disagreements, however quickly that may sometimes lead to a conversational impasse, than by playing the game -- even the meta-game of talking about the process itself.
