The Whelan Treatment and the Art of Pointless Demonization
Over at The Corner, conservative "legal expert" Ed Whelan writes:
This is Whelan's role in the conservative world, his niche. He's the guy Republicans look to when they need to discredit a Democratic legal or judicial nominee. He pores over their record, finds some trivial fact that, when distorted and taken totally out of context, makes that person look like some sort of extremist. Whelan knows this is what he's doing. It's willful. He's essentially a legal hitman, someone who provides the "expert" opinion that the right wing echo chamber then uses as the basis of its attack campaign. His most recent target has been State Department nominee (and potential Supreme Court nominee) Harold Koh.
The strange thing about Whelan's Ginsburg anecdote, however, is the lack of logic behind it. He sarcastically asks "are you really content with how that one turned out"? But what exactly did Whelan expect would happen? Even if he had managed to somehow torpedo Ginsburg's nomination, it's not as if Clinton was going to respond by appointing a conservative. Someone like Ginsburg (i.e., a well-respected, left-of-center judge) would eventually have been confirmed.
The same is obviously true now. That's why I've never really understood why people on the right or the left get so amped up to fight judicial nominations. I can understand that response when the nominee is truly extreme (like Robert Bork), but for anyone else, it's just a wasted effort. When you're fighting legislation, you can at least aim to water down the final product or secure some type of compromise, but you can't split the judge. People either get confirmed or they don't. And if they don't, then someone substantively similar eventually does.
Alas, Senator Hatch, my old boss, seems very eager to repeat his awful mistake from 16 years ago, when he precleared President Clinton’s nomination of Ruth Bader Ginsburg before I or anyone else had the opportunity to do a serious review of her record. Are you really content with how that one turned out, Senator?Translation: Hatch gave his approval to a mainstream and well-respected judge before hatchetmen like Ed Whelan had the opportunity to scour her record for some trivial detail they could then seize upon and distort in a coordinated demonization campaign.
This is Whelan's role in the conservative world, his niche. He's the guy Republicans look to when they need to discredit a Democratic legal or judicial nominee. He pores over their record, finds some trivial fact that, when distorted and taken totally out of context, makes that person look like some sort of extremist. Whelan knows this is what he's doing. It's willful. He's essentially a legal hitman, someone who provides the "expert" opinion that the right wing echo chamber then uses as the basis of its attack campaign. His most recent target has been State Department nominee (and potential Supreme Court nominee) Harold Koh.
The strange thing about Whelan's Ginsburg anecdote, however, is the lack of logic behind it. He sarcastically asks "are you really content with how that one turned out"? But what exactly did Whelan expect would happen? Even if he had managed to somehow torpedo Ginsburg's nomination, it's not as if Clinton was going to respond by appointing a conservative. Someone like Ginsburg (i.e., a well-respected, left-of-center judge) would eventually have been confirmed.
The same is obviously true now. That's why I've never really understood why people on the right or the left get so amped up to fight judicial nominations. I can understand that response when the nominee is truly extreme (like Robert Bork), but for anyone else, it's just a wasted effort. When you're fighting legislation, you can at least aim to water down the final product or secure some type of compromise, but you can't split the judge. People either get confirmed or they don't. And if they don't, then someone substantively similar eventually does.
posted by A.L. at 3:02 PM
26 Comments:
That's why I've never really understood why people on the right or the left get so amped up to fight judicial nominations. I can understand that response when the nominee is truly extreme (like Robert Bork), but for anyone else, it's just a wasted effort.
You had to mention Bork as some kind of extremist. All you're doing is regurgitating Kennedy's slander (and yes, it was slander) of Bork.
Kennedy set the standard that continued with Thomas, and took an unfortunate hiatus with the nominations of the extremists Ginsburg and Breyer. The "Kennedy standard" came back with the excellent picks of Roberts and Alito.
Why is it the left believes that they don't have to follow the rules and guidelines they set?
All you're doing is regurgitating Kennedy's slander (and yes, it was slander) of Bork
I'll see if I can find the exact quote when I get home, but IIRC Bork is the guy that outright told the Senate Judiciary Committee that he had no idea what the 9th Amendment meant. That is not someone you put on the Supreme Court. I wouldn't want such a person in traffic court, but most judicial position in the U.S. are elected, so you get people who feel like they can just throw out an amendment they don't like.
"the left believes that they don't have to follow the rules and guidelines they set"
Try actually knowing something about the "left", first. Then your posts wouldn't be so idiotic.
You know, there are quite a few members of "the left" here for you to ask, if you actually care *what* we think and want and believe. Every time (that I've noticed) you say "the left thinks/says/believes..." you are usually 180 degrees off. Don't you care? If I were arguing a position, I would try to know something actually true about the opposing view first.
Bork was long before I was paying attention to politics. But I do remember being amazed that such a horrible person was even considered for a public office (I didn't know who Kennedy was then, either). In retrospect, "extremist" was something of an exaggeration.
Steve, come now. Bork was always a fringy character. I wouldn't (and didn't) say the same thing about Roberts or Alito. Bork is pretty out there.
"People either get confirmed or they don't. And if they don't, then someone substantively similar eventually does."
Um...Nixon nominated right wing hacks Carswell and Haynesworth, who both were rejected by the Senate. Nixon then nominated Blackmun, who went on to write the Roe v. Wade decision.
I'm not saying something like this will happen in reverse to Obama, I'm just saying the stakes are high and sure the Republicans are gonna dig in.
the republicans are already "dug in"; they are already in sync in the media talking about "code words" and showing their bonifides as institutional hacks. they are opposed to obama's next pick even though he hasnt even picked him or her!
this is the rights modus operandi and i doubt it will change any time soon. fuck 'em, elections have consequences, bitches, now fuck off.
-proudliberal
It's all about the money A.L.
Money raised to oppose the confirmation.
Money raised to support
senators on the judiciary
committee who will oppose
the nominated judge.
Money raised to support
candidates who will opposed
judges of that kind in the future.
Money raised for RNC's
viability.
Money Money Money raised for
a myriad of reasons using the
judge's nomination as the
core.
A.L.:
Steve, come now. Bork was always a fringy character.
As opposed to whom? Stevens, Breyer, Ginsburg, Kennedy, and Souter all ruled in three of the most idiotic decisions of the last few years: the egregious Kelo decision, Roper v. Simmons, and the idiotic Boumediene decision. Each of these is a travesty.
Boumediene was cited by a recent Bush 43-appointed District Judge to force the Obama administration to hold habeas hearings for terrorists in Bagram. The last I checked, Bagram wasn't in Cuba, and the U.S. doesn't have a perpetual lease with the Afghani government as is the case with Gitmo. Again, the courts have no business granting unheard of rights to the foreign enemies America is at war with.
In Roper, Kennedy decided that a treaty the U.S. Senate never ratified and political consensus were somehow provisions within the U.S. Constitution. I'm not sure which U.S. Constitution Kennedy was reading. (Yes, I've read his opinion in that decision; it's putrid).
Then there is Kelo. Those five Justices should have been impeached for that decision, then charged with aiding and abetting criminals, the New London, CT city council who committed robbery and violated the 5th Amendment. By the standards of the left, every single attorney that advised and assisted the city of New London to violate the 5th Amendment should also be prosecuted, disbarred, etc.
But somehow, Bork is a fringy character.
Steve - get back on topic, OK?
Everything you say about those other justices and decisions is an irrelevant distraction. Bork was beyond a fringy character. He was to the right of John Birch and Ghengis Khan. Further, he had an abstract and experimental approach to law that might be fine in a classroom, but had no place in decisions that affect the real world, let alone the supreme court.
Bork had a political tin ear, but I was willing to give him the benefit of the doubt until he came out with Slouching Toward Gomorrah. That book basically says that it's all Guttenburg's fault. If he hadn't invented that damn printing press, intellectuals would still be paid lapdogs of the powerful and dissenters would still be burned at the stake. If only the Middle Ages had never ended, we wouldn't have all these problems we do today.
Not sure i agree that it makes no difference AL. Opposing nominees is not just about the nominee or the Court, for than matter. It is a broader political strategy designed to simultaneously:
1. push a meme that the administration is weak or extreme or both;
2. create confirmation fatigue, so that less effective but less controversial nominees are proposed;
3. get culture war stories undue prominence in the media;
4. create speaking and appearance opportunities for self-appointed experts.
Bork, Alito and Roberts are all extremists. The difference is that Democrats were willing to fight Bork's nomination, but they weren't for Alito or Roberts. Consequently we have more radical decisions coming out of the Supreme Court today than we have in a generation.
When judges are unwilling to clearly state their opinion on various law and legal precedents, they should be regarded with suspicion no matter what their ideological stripe. Bork, Alito and Roberts all tried to duck sensitive questions, and Roberts ultimately lied about his intent to rule as a moderate. He's been anything but.
The damage from the choices made by the Bush administration will be felt for decades, but nowhere more keenly than on the Supreme Court. If Obama's picks are as radical as Bush's, then the Republicans are right to oppose. If they just don't like Obama's picks because Obama picked them, then too fucking bad. It's one thing to perform due diligence. It's something else to simply obstruct.
"That's why I've never really understood why people on the right or the left get so amped up to fight judicial nominations."
You will understand thoroughly if you read Bush v. Gore, head and shoulders the most blatant example of judicial malfeasance in American jurisprudence, and if you consider the completely foreseeable consequences of that malfeasance.
"You will understand thoroughly if you read Bush v. Gore, head and shoulders the most blatant example of judicial malfeasance in American jurisprudence, and if you consider the completely foreseeable consequences of that malfeasance."
I think you're missing my point. I'm not saying that judicial appointments don't make a difference. They make a BIG difference. I just don't think agressively fighting them ever does much good. Even if you win a nomination battle, the president still gets to choose. If the President is of the other party, he's not going to choose someone you like (unless by accident). I subscribe to the 'elections have consquences' line of thinking.
Bork stated that he didn't believe in "rights", preferring the weaker-sounding "gratifications". That's on the fringe.
Bork, Alito and Roberts are all extremists.No, they're not. Alito and Roberts are simply conservative jurists. They're very smart, but they're well within the mainstream of legal thinking in this country.
You and I may disagree with their approach, but you are missing the point of this post: Any successful challenge to either nomination would have simply been followed with the nomination of a similar-thinking jurist.
This is especially true given that any challenge would have been based on some Whelen-style personal sin or idiosyncrasy -- not their judicial philosophy.
Alito and Roberts are not "extremists". They were likely chosen for deference to the executive branch - which, in and of itself is not an extremist position, though the Bush-Cheney unitary executive theory is as dangerous a constitutional theory as it gets albeit with a fair bit of support among certain segments of the legal commentariat.
Bork, in the 1980s, was at the border of mainstream and fringe. I mean, I was on a conservative-libertarian law journal in the mid-80s and many of the editors felt he was hardcore in a way that even Scalia wasn't. He had the problem that afflicts many brilliant intellectuals, left and right - he had an ideology of interpretation that had surface brilliance but did not hold up well over time in practice. (Had the Larry Tribe of the 1980s been appointed to a court, he might have turned out less considered than he did in later years. Too many academics and jurists go through a phrase of believing their best press, as it were.) Kennedy did the right thing but the wrong way, and the ends did not justify the means.
Real talk - if Robert Bork hadn't wussed out during the Saturday Night Massacre, he'd have made it onto the Court.
The 9th Amendment reads: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
Bork: "I do not think you can use the Ninth Amendment unless you know something of what it means. For example, if you had an amendment that says 'Congress shall make no' and then there is an inkblot and you cannot read the rest of it and that is the only copy you have, I do not think the court can make up what might be under the inkblot if you cannot read it. "
In Bork's view, the 9th Amendment is meaningless and unusable. Therefore, the Court cannot enforce any rights that are not enumerated. This view, of course, clearly goes against the plain meaning of the 9th Amendment.
That, Steve, is an extremist position. There's no Ted Kennedy here. This is all Bork. All stark, raving mad Bork. Have a nice day.
Sometimes nominees are worth fighting over, even conservatives disliked the idea of Justice Harriet Miers.
A.L.,
You should read some game theory. The fact that the Senate has a veto (and even a minority in the Senate has a veto as long as a majority in the Senate will stand up for the filibuster) makes a difference in who the President can pick.
The problem would be if the minority party in the Senate decided it would oppose *anyone* the President picked, and the GOP seems to be getting close to this. For instance, Whelan has decided to try to make Cass Sunstein radioactive, and he's about as good a pick the right could possibly get out of Obama.
Scalia and Thomas are the court extremists.
Look at the anti-gay sodomy law in Texas. They both backed it. I guess "equal protection" only applies to handing George W. the election.
Scalia said that a judge must recuse themselves if there is any appearance of partiality. Then he stayed and voted on a case concerning his hunting buddy Dick Cheney.
Scalia calls himself a strict Consitutionalist, but what that really means is that he's already made up his mind on a host of issues, and just KNOWS the founding fathers would have seen things the same way.
Thomas is just a nitwit. He has gone entire years without asking a single question from the bench.
SteveAR said:
You had to mention Bork as some kind of extremist. All you're doing is regurgitating Kennedy's slander (and yes, it was slander) of Bork.The fact that you can say this and then turn around and call Ginsburg and Breyer “extremists” simply shows how far out on the fringe you are yourself. The fact is, Ginsburg and Breyer are much closer to the center than Bork, or for that matter, Scalia, Thomas, Alioto, and Roberts.
If you call Ginsburg and Breyer “extremists”, what word would you use to describe someone like Thurgood Marshall, William Brennan, or William O. Douglas?
LFC said:
Thomas is just a nitwit. He has gone entire years without asking a single question from the bench.In all fairness, it’s probably pretty difficult to talk with his lips pressed so tightly against Scalia’s ass.
I mean, it's impossible to divorce the question of the institutional needs of interests groups from this question, too. You ask why every nomination everyone gears up to fight over judicial appointments, and the answer is simple...the Bork nomination let the cat out of the bag.
Liberal groups who benefited from the increased bankrolls from direct mail campaigns suddenly had to continue raking in the kind of cash they did before. Conservatives who felt gypped by the Bork hearings started their own groups, with the rallying cry of "Never Again Be Borked" that they used to drum up support (and donations!) for the Thomas nominations.
And the rest, they say, is history. Interest groups have an interest in maintaining the flow of money to their coffers, and drumming up a fight on judicial nominations is one great way to keep the purse heavy.
The one thing I liked about Bork was his video rental selections.
Ok, even that was problematic -- the dude really liked Roger Moore.
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