Ed Whelan comments on Dalia Lithwick's latest (noted by Orin). Whelan's response seems to me to be more persuasive and certainly more factually developed than Lithwick's.
On particular point caught me eye--Lithwick dredges up a supposedly sexist joke made by John Roberts back in the day. I have to say, I don't see how anyone could realistically read that off-hand comment as being anything other than a lawyer joke, not a sexist joke. Whelen reveals a few other stretchers in Lithwick's piece.
I am also persuaded by Whelan that it is not obviously hypocritical to apply different standards to question Executive Branch officials than judges. I'm not sure I necessarily agree with Whelan's argument. But it does seem obvious that Lithwick needs more than rhetoric to prove that they should be the same, although it seems like it never even occurred to her. Overall, even if one doesn't agree with all of Whelan's arguments, after reading his comment, I have to say I found her analysis pretty thin.
You may have been wrong, though only literally. Consider me: Because of Slate's generally high standards, I frequently make the mistake of reading Lithwick, or even of taking her seriously. But you are right in substance - Lithwick rarely goes beyond reciting undergrad certainties, and I can't recall her ever challenging any of those.
No, I haven't read the piece. And I bet I am being unfair here. Isn't it usually just a coincidence when we find ourselves in agreement with fellow ideologues?
This particular piece, though, was probably the worst I've ever seen of her writing, and I think Ed Whealan's criticisms are spot-on.
I hope the thread doesn't further devolve into personal insults against Lithwick as it often does--there's plenty to criticize in her actual argument.
The hypocrisy is blatant, even if, as Orin notes, entirely understandable and reciprocated. And in this one respect, I would score Lithwick over Whelan.
I read Slate a fair amount as well, but I don't their standards are all that high. (Though I guess it depends on what you're comparing them too ...) Lithwick's argumentation and (lack of) ability to consider opposing viewpoints seems pretty par for the course for Slate.
Now, such partisan bias is not uncommon, and I think the filibuster is unconstitutional argument was always very weak (and perhaps insincere). But if you take the Pubs at their word, there's not much defense.
This argument is stupid and assumes his conclusion. The actual legitimate debate at issue is NOT whether abortion should be legal/illegal/whatever BUT whether the constitution has anything to say about it. Whelan recognizes this in making his own arguments, but not in analyzing Johnsen's position (and whether it's proper to engage in analyses of alternate constitutional theories regarding abortion aside from "substantive" due process, that is, the thirteenth amendment).
My point? Everyone's a critic - and everyone's a hypocrite.
Not really, if Senate Republicans have in fact threatened a filibuster to preserve their blue slip privilege which AFAIK they didn’t previously say was “unconstitutional,” then there is no hypocrisy at all in threatening a filibuster to preserve a privilege that they didn’t regard as “unconstitutional.” In which case then, rather than a mere “deficiency” Lithwick has either negligently or intentionally misrepresented the central issue in the letter sent by Senate Republicans in the hope of scoring a cheap rhetorical point, which unfortunately seems to have become the MO for her columns.
Moreover not every Republican Senator took the position that filibustering judicial nominees was “unconstitutional.” There were at least seven in the Gang of Fourteen who clearly felt otherwise (as they acted to allow the practice to continue) and others who opposed the practice on other grounds such as the traditional deference that they believed that the Senate paid to the President’s judicial nominees. As Whelan correctly pointed out, having failed to persuade Senate Democrats to give up the practice under Bush 43, it is neither “hypocritical” nor fair to expect them now to unilaterally disarm in the Obama administration after Senate Democrats changed the practiced.
Well, actually, the Republicans' position was that EVERY judicial nominee was constitutionally entitled to an up or down vote. The LOGIC of that position would certainly include blue-slipping as unconstitutional, even though they were making the argument against the filibuster.
But to make the more general point, which is neither as exciting nor as well written as Lithwick's and Whelan's pieces:
1. BOTH PARTIES WILL DO WHATEVER THEY CAN TO BLOCK JUDGES WHEN THE OTHER PARTY CONTROLS THE PRESIDENCY, BECAUSE THE INTEREST GROUPS THAT COMPRISE THE BASE OF THE PARTY CARE A LOT ABOUT THIS ISSUE.
2. BOTH PARTIES WILL, WHEN THEY CONTROL THE PRESIDENCY, DO WHATEVER THEY CAN TO UNDERMINE THE PROCEDURAL DEVICES USED BY THE OTHER PARTY TO BLOCK NOMINEES.
3. NONE OF THIS HAS ANYTHING TO DO WITH WHAT THE "RIGHT", OR "CONSTITUTIONAL", PROCEDURAL RULE IS.
I'm sorry to all the people who want to blame Republicans OR Democrats for this situation, but that's the way it is.
She is in some ways like Paul Krugman -- an excellent analyst when sticking to her core expertise, but easily deranged by anything that can be linked to partisan politics.
I agree wholeheartedly with your three points, but think you need a fourth:
3.a: APOLOGISTS AND PARTISANS ON BOTH SIDES WILL TRY MIGHTILY TO USE EVERY TACTIC THEY CAN TO EXPLAIN WHY THEIR EARLIER POSITIONS ARE ENTIRELY CONSISTENT WITH THEIR NEW, DIAMETRICALLY OPPOSED POSITIONS.
The Republicans advocated that a filibuster on judicial nominees was unconstitutional. Given that is the position they took, it is pretty hard to reconcile using the filibuster on judicial nominees, whatever the purpose. All of a sudden violating the constitution is justified to preserve minority prerogatives?"
This is an example of the R "zombie constitution" philosophy. It is dead most of the time, but can be made living and malleable whenever convenient.
Sure it was.
The position of most Senate Republicans was that every nominee vetted by the Judiciary committee was entitled to an up-or-down vote. A handful claimed using the filibuster to block such nominees was unconstitutional. Most rested their opposition to the practice on practical arguments or appeals to longstanding custom. And in any event, they never got excited enough by the issue to change Senate rules, something that was within their power as a caucus to accomplish if they voted unanimously to do so.
Using the filibuster to block judicial nominations is now established Senate practice, and expecting the opposition party to forgo doing so because some members argued it was a bad idea when they were in the majority is ... amusing, to be charitable.
And won't the whole issue be moot in a few weeks/months anyway when Al Franken shows up.
Actually, their position was that every nominee who was vetted by the Judiciary Committee and had "clear majority support" was entitled to an up-or-down vote, or something equally artificial and obtuse.
I have no expectation. And it is true that not every republican argued that filibustering judicial nominees was unconstitutional. But a few did. And of those that did, they did not add the qualifier "but it is constitutional to filibuster a judicial nominee in order to preserve blue slip privileges."
I do not expect a Republican to forgo using a procedural device because it is a bad idea. In contrast, I usually would expect a politician with decency and respect for our republic to forgo using a device if they actually thought it was unconstitutional.
Reciprocity is usually a good idea, because it keeps the worst impulses in check. But it also perpetuates a vicious cycle once started. Say that Party A starts taking bribes and torturing political opponents. It is surely not the response that, once Party B gets into power, it too should torture Party A members. Once you say that supposely-unconstitutional filibusters are OK because Democrats used them, there is no stopping point.
More Whelan:There was the Gang of Fourteen agreement, which seemed to hold (at least for some justices and for some executive appointments).Even assuming so (which is rather questionable given the Gang of Fourteen), the question is not whether the Democrats did it; it's whether the the Republicans are being consistent. Even if the Democrats did "change their minds", two wrongs don't make a right.
Whelan is perfectly free to do a Litwickesque post on the Democrats behaviour (and probably will within a millisecond of being given the opportunity). That doesn't make her post any the worse.
Cheers,
This is some pretty good rationalization.
There is no vote on the Senate floor related to blue-slips. The vote they are threatening to filibuster is the vote to confirm a judicial nominee. They are merely limiting the scope of the group of nominees that they are threatening to filibuster.
The blue slip privilege has been used in the past by Senators to block judicial nominees. Filibustering to preserve this privilege is filibustering to block judicial nominees.
But I would be interested in the constitutional theory that suggests that filibusters are unconstitutional, but only if there are no blue slips. Can you explain that one, Thorley?
I agree.
Fortas had to resign as an Associate Justice the next year when it came to light that he had arranged a $20,000 a year retainer for life (continuing until his wife died), from a financier that was seeking a pardon from LBJ.
I enjoyed reading Lithwick's commentary of those nominations. I thought her Please Don't Feed the Federalists was a brilliant skewering of the ineffectual Democrats on Judiciary who just could not seem to deal with the reality of Alito sitting before them.
It's all well and good to spend all this attention on Lithwick. Columnists are fair game for crticism.
But I am more interested in is the substance of all this. Regardless of which side anyone is on, I think the news is that Repbublicans in the Senate are signaling quite clearly that Obama's nominations for DOJ and the judiciary are going to be contested hard from here on. The next round will be over Dawn Johnsen to head OLC.
Cheers,
and if everybody's somebody, then no one's anybody
One word: Hitchens.
Have we all become such partisan hacks that we can't see the double standard in that paragraph? Our view is correct, so our nominee was acting reasonably, while your view is self-evidently wrong, so your party was not acting reasonably in defending it. Of course this ignores that the "self-evidently correct" view has been rejected by a majority of Justices, as well as a majority of the American populace, time and time again.
Oops. I'd already insulted her when I read this comment. Sorry!
How about this: Dahlia Lithwick is smart, pretty, very funny and witty, and almost universally unfair and dishonest in what she writes. There's a pretty good balance there.
[Amplification: Some readers have evidently (and understandably) misunderstood my point 4, so let me clarify it. Lithwick finds it puzzling that the term “activist” could be applied to someone who embraced then-existing case law on abortion. My point is that the terms “judicial activism” and “judicial restraint” draw their meaning primarily from separation-of-powers principles (rather than from the intrajudicial doctrine of stare decisis). Therefore, it shouldn’t be puzzling that those who regard Roe as indefensible and illegitimate view supporters of Roe as supporters of judicial activism. (I did not mean by my point 4 to present an argument for Roe’s illegitimacy, though I’d refer interested readers to my 2005 Senate testimony on the matter.)]
If Mr. Whelan really believed that definition of "judicial activism," then he should be willing to concede the point that Justices Scalia and Thomas are the biggest judicial activists on the Court because they are the most likely to overturn decisions made by other branches of government.[1]
If he wanted to "support a Court that practices proper judicial restraint," then he would support nominees who are more in the mold of Justice Breyer.
I suspect that Mr. Whelan would not support a nominee more like Breyer than Scalia to the Court, which makes me think that his stated definition of "judicial activism" was an after the fact rationalization, when he realized how silly his fourth point was in his original post.
I don't necessarily agree with everything that Ms. Lithwick wrote, but if someone is going to criticize her for intellectual dishonesty, then he needs to do it in an intellectually honest way. Mr. Whalen does not do that.
I've never understood this sort of reasoning. What "ought" to be the rules of conduct is open to debate; what "are" the rules of conduct is the reality...what the rules until those rules are changed.
I was reminded of this when I was a novice union representative. I once complained about some process that the management team used and how we ought to avoid using the same "rule" to our advantage.
A older Union man took be aside and gave me some good advice: "If you come here to play with baseball's rules, and the game is football, you lose. We play by the rules we have, not the one's we wish we had.".
I did and I never had a management team complain "your a hypocrite"; honestly, I think we were a bit more mature about these things than the politically fevered (of either side).
While diminished respect for blue slips was one of the justifications offered by Senate Democrats for resort to the filibuster, two qualifications are in order. 1) Hatch never completely took away the blue slip privilege (and the privilege was never uniformly enforced by prior Senate leaders either). 2) Individual nominees were filibustered even when blue slips were not an issue. See, e.g., Miguel Estrada, for whom blue slips were irrelevant because he was a nominee to the D.C. Circuit. Indeed, Lithwick links to an NYT editorial that justified filibustering Estrada due to his failure to answer questions more thoroughly.
On another note, four days before Lithwick's article ran, I had a post on Bench Memos noting her suddenly changed views on judicial nominations.
JHA
Justice Roberts appears to have evolved in a positive direction since his early days in government, during which a number of his remarks exhibited a less-than-enlightened view of the world (which could be understandable, given his sheltered circumstances and choice of playmates). This is to Justice Roberts' credit. A number of those playmates remain mired in the muck.
It's a classic lawyer joke, of the same kind as Little Timmy telling the class his father plays the piano in a whorehouse, and when the teacher questions him after class, admitting that his father is actually a lawyer, but he wanted people to think his father was more respectable than that.
Consider other jokes along the same lines:
Two men are walking through a graveyard. They come across a headstone that says Here Lies A Lawyer And An Honest Man. One turns to the other and says "I see they're burying them two to a grave nowadays."
What do a lawyer and a spermatozoon have in common? Both have a 1 in 1,000,000 chance of becoming human.
Nick
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