Off the Radar Character Assassination
Over at Slate, Dahlia Lithwick highlights the coordinated and entirely fact-free character assassination campaign that right wing groups have launched against two of Obama's most impressive nominees, Dawn Johnsen (tapped to head the OLC) and Harold Koh (tapped to be legal adviser to the State Department). Most lawyers are familiar with both Johnsen and Koh. They are both exceptionally intelligent and accomplished, well-respected in their fields, and thoroughly mainstream legal thinkers.
But that of course hasn't stopped right wing groups from launching completely groundless smear campaigns against them. The primary source of Lithwick's frustration, however, is the complete failure of the media, the Democrats, and left-leaning groups in coming to their defense. And she's absolutely right to be frustrated by this radio silence. Johnsen and Koh are two of Obama's more inspired choices to fill positions in his administration. They are without question the sort of people we should want in government, and regardless, they don't deserve to have their reputations smeared by dishonest charlatans.
I think that part of the problem here, though, is the continued segregation of the media. Until I read Dahlia's piece, I honestly didn't know that these smears were even in circulation in right wing circles or that Republicans in Congress were gearing up to potentially filibuster Johnsen and Koh as a result. With so much else going on in the news, these two nominations just haven't generated much attention from mainstream news outlets. And, unlike right-wing blogs who tend to be more self-referential, left-leaning blogs and news outlets tend to focus their attention on whatever the mainstream outlets are covering.
As a result, we're often late to the game with stuff like this, especially when the targets are people who would not otherwise be garnering headlines. The smears are allowed to simmer for a while without encountering any real resistance. Lithwick is right that we need to do a better job nipping these smears in the bud. She's also right that we need to fight hard to make sure that Koh and Johnsen are confirmed. If we allow Republicans to sabotage the nominations of well-qualified nominees like these based on ludicrous and unfounded smears, why would anyone ever volunteer to serve?
But that of course hasn't stopped right wing groups from launching completely groundless smear campaigns against them. The primary source of Lithwick's frustration, however, is the complete failure of the media, the Democrats, and left-leaning groups in coming to their defense. And she's absolutely right to be frustrated by this radio silence. Johnsen and Koh are two of Obama's more inspired choices to fill positions in his administration. They are without question the sort of people we should want in government, and regardless, they don't deserve to have their reputations smeared by dishonest charlatans.
I think that part of the problem here, though, is the continued segregation of the media. Until I read Dahlia's piece, I honestly didn't know that these smears were even in circulation in right wing circles or that Republicans in Congress were gearing up to potentially filibuster Johnsen and Koh as a result. With so much else going on in the news, these two nominations just haven't generated much attention from mainstream news outlets. And, unlike right-wing blogs who tend to be more self-referential, left-leaning blogs and news outlets tend to focus their attention on whatever the mainstream outlets are covering.
As a result, we're often late to the game with stuff like this, especially when the targets are people who would not otherwise be garnering headlines. The smears are allowed to simmer for a while without encountering any real resistance. Lithwick is right that we need to do a better job nipping these smears in the bud. She's also right that we need to fight hard to make sure that Koh and Johnsen are confirmed. If we allow Republicans to sabotage the nominations of well-qualified nominees like these based on ludicrous and unfounded smears, why would anyone ever volunteer to serve?
posted by A.L. at 9:19 AM
12 Comments:
As far as I know, no one is suggesting that Koh and Johnsen are not "intelligent," "accomplished," or "well respected in their fields."
The "thorougly mainstream legal thinker" part might be somewhat controversial, however. Could you give me an example of a progressive legal thinker who is not "thoroughly mainstream" for purposes of comparison?
MLS,
Why is the burden on me to demonstrate that they are mainstream thinkers? They're well know and well-respected. Johnsen served as an deputy AG in the Clinton administration. Koh is the dean of the nations top law school and has testified before Congress as an expert dozens of times. Name one "non-mainstream" view that either of them have ever espoused.
Going through a few different pages after trying to see exactly what position Koh was nominated for, I came across some sites of conservative legal professors. I don't have anything resembling the background of any of the people involved, but from what I can tell, the objections raised against people like Koh are over their politics. Even when someone says he'd be an "unmitigated disaster" if he were ever on the Supreme Court, it doesn't seem to be because they think he doesn't have the stature, just that they consider his views pretty far to the left.
Is that right? Again, this isn't my world (at least not yet), but this seems like the right way to go, because it's over his actual ideas, not over his made up positions and distorted comments. If it's correct, why do they feel he's that far to the left? Is he?
By the way, is calling someone at "unmitigated disaster" a low blow in the legal world, or is it par for the course? I don't remember if this sort of language came up when Roberts and Alito were nominated, but maybe it did.
Brian J:
Even when someone says he'd be an "unmitigated disaster" if he were ever on the Supreme Court, it doesn't seem to be because they think he doesn't have the stature, just that they consider his views pretty far to the left.
Unlike conservative judges and Justices, judges from the left actually implement their politics into their judicial opinions (making up laws and rights), as has been seen in Roe v. Wade, Roper v. Simmons, Boumediene, etc.
AL:
Why is the burden on me to demonstrate that they are mainstream thinkers?
In the post, you said:
They are both exceptionally intelligent and accomplished, well-respected in their fields, and thoroughly mainstream legal thinkers.
I think mls (and mls can correct me if I'm wrong) wants to know your opinion of what is a mainstream legal thinker.
Ed Whelan at National Review wrote up an analysis of Koh last September, based on Koh's own words. He makes a good case that a Koh appointment to the Supreme Court (not the current position he's up for), and full of what some would call mainstream legal thinking, would be very harmful to the U.S.
...they don't deserve to have their reputations smeared by dishonest charlatans.
As they say, payback is a...Bork?
"Unlike conservative judges and Justices, judges from the left actually implement their politics into their judicial opinions (making up laws and rights), as has been seen in Roe v. Wade, Roper v. Simmons, Boumediene, etc."
I'm not going to argue about that, simply because I have no way of assessing its validity. I've heard it before, however, but not specifically towards Koh. Is that the only reason people have an issue with him?
I'd probably disagree with Alito, Scalia, and Roberts on a lot, but that doesn't mean they shouldn't be allowed on the Court. It seems like a lot of people, on both the right and the left, say people from the other side aren't acceptable because they don't agree with them.
Brian J:
I'd probably disagree with Alito, Scalia, and Roberts on a lot, but that doesn't mean they shouldn't be allowed on the Court.
That is supposed to be the standard. When a Democrat is President, the left claims that is the standard to be followed. But when a Republican is President, the left changes the standard to where political considerations outweigh qualifications. It happened during the Robert Bork nomination (Senate Dems lied about Bork's positions during the confirmation hearings) and the Clarence Thomas nomination (Thomas was eventually confirmed, but he was viciously slandered by the left), and with many of the nominations George W. Bush made (which eventually led to that ridiculous "Gang of 14").
In addition, per the Ed Whelan piece I linked to earlier, Koh appears to have many of the same judicial qualities as Justice Kennedy, applying international standards from treaties the U.S. hasn't ratified (Kennedy also seems to believe political consensus outweighs the Constitution; he did this in Roper).
I don't think it's me that's confused. Both Koh & Johnsen have shown themselves to be moderates. They have long track records. I know the dynamic of the conservatives is to try to push the center to the right. We see that in the media constantly, but for one to suggest that either of these two are liberals is a case of too too much right wing Kool-Aide drinking.
And yes, you on the right who claim these two are 'out of the mainstream' have to give actual examples of it & not just link to right wing blogs which religiously publish bs.
AL- enough with the burden-shifting. This is the internet. No one has the burden to establish anything, which is why most blog threads quickly degenerate into a series of unsubstantiated assertions.
Your arguments tend to be sprinkled with a heavy dose of broad generalizations (all experts believe this, every sane person knows that, etc.). Every once in a while I am curious to see whether there is something underlying these assertions, or whether it merely reflects the belief that all of your views are so self-evident that everyone, except the stupid or willfully obtuse, must share them (this is a point of view, I might add, that seems to be very “mainstream”).
Now I am guessing that you would have no problem in identifying conservative legal thinkers, who, despite having strong academic credentials, being accomplished and even sitting at lofty levels of the federal judiciary, you would not view as “thoroughly mainstream” in their views. I am just curious whether there are liberal thinkers who you would acknowledge as having views outside the mainstream (whether or not you might agree with those views). If you can’t think of any, that’s fine.
As for my “burden” of identifying non-mainstream views that Koh or Johnsen may have, I don’t know all that much about their views, but Johnsen’s suggestion that restrictions on abortion raises the specter of a 13th Amendment violation strikes me as pretty out there. Andrew Koppelman has a defense of Johnsen at Balkinization which is more damning than exculpatory, IMHO.
MLS,
What annoys me about your comments is that they are too often just knee-jerk contrarianism. You're arguing for the sake of arguing, without any basis, as you often admit yourself in subsequent comments.
As for my "burden" comment, if you'll notice, I followed that by pointing out that Johnsen was a deputy AG in the Clinton administration, and Koh (the dean of Yale Law School) has testified as a expert before Congress like 20 times. That's a pretty good prima facie basis for being considered "mainstream." If you disagree, make an argument; marshall some actual facts.
And I'm not applying a double-standard here. If you'll look through the archives here, you'll see that I defended people like John Roberts and Michael Mukasey as being perfectly mainstream in their views (even though I disagree with them). I think elections have consequences and the President should be allowed to nominate qualified people whose views are not completely fringy. That's why I was against fighting the nominations of people like Roberts and Mukasey. Koh and Johnsen are no more outside the mainstream than those two Bush appointees.
I think all this opposition is being blown up so that Obama is afraid to even consider nominating a halfway progressive person for some judge-ship.
Honestly, we're talking OLC and advisor to the State Department? After the Bush administration had Yoo, Bybee, and of course, Alfredo?
I would have thought they'd be happy to surpass the level of "minimally competent", which none of the above did.
Honestly, we're talking OLC and advisor to the State Department? After the Bush administration had Yoo, Bybee, and of course, Alfredo?
I would have thought they'd be happy to surpass the level of "minimally competent", which none of the above did.
Bingo
I think all this opposition is being blown up so that Obama is afraid to even consider nominating a halfway progressive person for some judge-ship.
I think this is so that the misdeeds of Bush never come to light and nobody is investigated/prosecuted.
We need to push back hard against the Republicans on this.
I feel like almost all of mainstream reporting is right-wing smear campaigns, lately. It sure is funny to hear the right talking about teabagging, but it's also interesting in a way - I was just listening to an episode of The Joan Kenley Show (progressive Bay Area podcast) called The Media: What’s True, What’s Not that addressed how the right-wing corporate media will use catch phrases (like "socialism") and single-line branding to manipulate the information we hear, it ties in nicely with this entry.
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