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Now and Then:
Dahlia Lithwick, The Rational Hysterics, today:
Confirmation hearings are inevitably an invitation to behave badly. Something about the bright lights of the Senate judiciary committee brings out the worst in people. Legal thinkers who are otherwise reasonable and intelligent somehow become great big puddles of snarling, hateful id. I think Democrats made a mistake when they accused Chief Justice John Roberts and Justice Samuel Alito of being misogynists and racists at their confirmation hearings. And Republicans are poised to make the same mistake when they attack Obama's Supreme Court nominee, Sonia Sotomayor. . . .
Dahlia Lithwick, John Roberts' Woman Problem, August 19, 2005:
Score one for Bruce Reed. He picked up on what I completely missed this week: that the most telling aspect of Supreme Court nominee John Roberts' adolescence was not his staunch refusal to get high in the woods, but his contempt for all things female. . . .

Yesterday's info dump from the National Archives, raining down more than 38,000 pages of memos from Roberts' service as a legal adviser in the Reagan White House from 1982-86, suggests that Reed has the better of it. . . . What's truly is shocking is his dismissive tone, which seemed to surprise even ultraconservative Phyllis Schlafly, who described it yesterday as "smart alecky." Gender disparities are invariably "perceived" or "purported," in Roberts' eyes. Every effort to solve them is laughable. At a moment when serious inequities in women's wages, employment, and opportunities existed in this country, Roberts seemed to dismiss every attempt to remedy them as a knock-knock joke. . . . .

Does all this add up to John Roberts, woman-hater?

Elliot Mincberg, senior vice president of People for the American Way, told the Chicago Tribune today, "You do see a real clear lack of regard for—and even it could be argued, hostility toward—laws and theories and arguments that would promote equality for women in important ways." And Kim Gandy, president of NOW, fumed in the same paper: "I don't see Roberts' positions as conservative. ... I know a lot of conservatives who expect women to be paid fairly, who think women should become lawyers if they want to be lawyers. That is not a conservative position, that is a Neanderthal position. It's unfair to conservatives to call the positions he takes conservative."
Rod Blaine (mail):
Did anyone really, seriously, expect Dahlia Lithwick to act otherwise and try to adhere to any consistent principle in this regard? I mean, really?
5.26.2009 9:36pm
DG:
Lithwick is the high school newspaper writer who never grew up. She now lives in the neverland called Slate. She thinks herself high minded and centrist, but thats a joke.
5.26.2009 9:38pm
Soronel Haetir (mail):
Kerr's Law in action!
5.26.2009 9:41pm
OrinKerr:
I realize that the post is pointing out inconsistency, but with that said, please keep it civil, everyone.
5.26.2009 9:56pm
mls (www):
I see no inconsistency. Lithwick says today that confirmation hearings cause "legal thinkers who are otherwise reasonable and intelligent somehow [to] become great big puddles of snarling, hateful id."

Her 2005 article confirms her point.
5.26.2009 10:02pm
MarkJ (mail):
This part is hilarious:

"The angry screeching from the right that Judge Sotomayor is too emotional to fairly apply the law is already starting to sound, well, hysterical. And the fun is only just beginning."

Ah, so. In DahliaWorld, principled and serious objection to Sotomayor from conservatives is now "screeching" and "hysterical." Damn, I, for one, haven't screeched in, oh, I can't remember when (too hard on the old vocal chords). And I sure as hell haven't been hysterical since 2004, when the BoSox Red Sox broke the Curse of the Bambino and swept their first World Series since 1918.

So which planet do you think Dahlia Lithwick is mentally orbiting? Uranus or Neptune?
5.26.2009 10:04pm
Asher (mail):
Orin, in all seriousness, I think that what she's saying is that she, as an openly partisan Democrat, along with other Democrats, made a strategic mistake in indulging in Roberts-as-misogynist attacks. Dahlia's never really pretended to be a Court reporter so much as an entertaining journalistic advocate for a particular vision of the Court. Of course she doesn't explicitly count herself among the Democrats who made the mistake, but I'm sure if you asked her she would say that she erred in using her platform to put out the wrong sorts of attacks on Roberts, instead of attacks that might have been more successful.
5.26.2009 10:09pm
BooBerry (mail):
Eh. At least then Lithwick and Democrats had some evidence on paper that Roberts was clueless about gender discrimination and equality during his years in the Reagan White House.

Now, conservatives are going on nothing to denigrate Sotomayor. Look at Limbaugh (who has no idea what Ricci v. DeStefano, the Equal Protection Clause, or Title VII even mean), Glenn Beck, Hannity, etc.
5.26.2009 10:19pm
Joseph White (mail):
So if I'm understanding this right, Lithwick's warning the Republicans against tarring Sotomayor as a misogynist?
5.26.2009 10:22pm
Leo Marvin (mail):
MarkJ:

Ah, so. In DahliaWorld, principled and serious objection to Sotomayor from conservatives is now "screeching" and "hysterical." [...]

So which planet do you think Dahlia Lithwick is mentally orbiting? Uranus or Neptune?

While stuck in traffic I heard about half an hour of Mark Levin. If Lithwick is orbiting the world of right wing talk radio, "screeching" and "hysterical" seems about right.
5.26.2009 10:27pm
Seerak (mail):
Orin, in all seriousness, I think that what she's saying is that she, as an openly partisan Democrat, along with other Democrats, made a strategic mistake in indulging in Roberts-as-misogynist attacks.

It's going to be at least three years before they will need to make that "mistake" again with conservative nominees... so confessing it now, years away from such a situation in both temporal directions, is almost certainly just battlespace prep.
5.26.2009 10:40pm
Conservadick (mail) (www):
I guess I'm supposed to know who this Lithwick person is?
5.26.2009 10:42pm
Letalis Maximus, Esq. (mail):
Its OK, C-dick. Her stuff is just Democratic/Left Talking Points disguised, poorly, as legal analysis and commentary. Her main gig seems to be as some sort of legal correspondent at slate.com. She was shocked, shocked, that the Supremes actually found the 2nd Amendment to protect an individual right. Reading her analysis of Heller, one could be forgiven for concluding that there was no legal scholarship to be found anywhere that supported an individual rights interpretation and Justice Scalia just pulled the whole thing out of his ass last year. Her stuff is pretty much a waste of time, as far as I'm concerned.
5.26.2009 10:48pm
ox (mail):
It would be helpful if Orin included the links that Lithwick makes part of her story, which clarify the meaning of what she says there by linking to another article about how Democrats should approach Republican nominees. By the time of the Alito hearings, Lithwick had obviously learned something from the earlier Roberts nomination proceedings and argued accordingly. But that doesn't come through because Orin omits the hyper-links -- which I think is basically equivalent to misquoting her.
5.26.2009 10:50pm
Brian G (mail) (www):
Why anyone takes this bozo seriously is quite beyond my capacity.
5.26.2009 10:54pm
ox (mail):
Not much capacity there -- so much for civility. Not that anyone would expect it, Orin's admonitions to the contrary.
5.26.2009 11:02pm
Oren:

I think Democrats made a mistake when they accused Chief Justice John Roberts and Justice Samuel Alito of being misogynists and racists at their confirmation hearings.

Since Lithwick is a Democrat, doesn't that mean that she now regards her 2005 behavior as a profound mistake? '

This is like pointing out the inconsistency of a recovered alcoholic because you can cite evidence of that time when he drank 12 beers in a night.
5.26.2009 11:11pm
Oren:


It's going to be at least three years before they will need to make that "mistake" again with conservative nominees... so confessing it now, years away from such a situation in both temporal directions, is almost certainly just battlespace prep.

Why scare quotes around mistake? The liberal wing of the Dems (to which I assign DL, regardless of where she assigns herself) failed utterly to derail Roberts.
5.26.2009 11:12pm
The Blue Dahlia:

Did anyone really, seriously, expect Dahlia Lithwick to act otherwise and try to adhere to any consistent principle in this regard? I mean, really?


No.
5.26.2009 11:19pm
Dave N (mail):
Booberry,

Nice, off-topic, ad hominem attack. Do you have any quotes re: conservative pundits?

BTW, not to defend Rush Limbaugh, but I would note that he has a certain respect for the law, even when he disagrees with it--in part, I suspect, because his father was a prominent Missouri lawyer, as his brother.
5.26.2009 11:19pm
Blue:
Honestly, I see no particular need to be civil where Lithwick is concerned. She is nothing more nor less than a paid shill for the liberal wing of the Democratic party.
5.26.2009 11:24pm
Christopher Cooke (mail):
Come, Come. Lithwick only accused Roberts, not Alito, and then she only implied he was a misogynist, not a racist.
5.26.2009 11:39pm
Oren:

BTW, not to defend Rush Limbaugh, but I would note that he has a certain respect for the law, even when he disagrees with it

Except it impinges on his opiate habit?


Come, Come. Lithwick only accused Roberts, not Alito, and then she only implied he was a misogynist, not a racist.

And now repudiates that accusation as a grave mistake.
5.26.2009 11:45pm
JunkYardLawDog (mail):
Little talk is being made of Sotomayor's other firefighter decision. It is highly relevant yet its being ignored by the New York Times, Washington Post, and all the lefties everywhere.

In Blackman v. Thomas Hewitt Edward Mann (2nd Cir 2001), Judge Sotomayor ruled that the city of Bizzarro, New York discriminated against 10 black firefighters who had passed the promotional exam, but were not promoted because all the white firefighters who took the exam had failed to pass.

The record revealed that the white firefighters didn't study as hard to pass the exam and instead were counting on the fact that they would be promoted any way because they were white. In essence the white firefighters were relying upon the institutionalized system of affirmative action preferences that are part of the firefighter system to guarantee their promotions regardless of their ability, dedication, or demonstrated performance on an objective test.

Judge Sotomayor ruled this was such an obvious case of invidious and unconstitutional racism that it could not be allowed to stand under any rationale. She was joined in her opinion by a unanimous panel of 2nd Circuit Judges, en banc. See Blackman v. T.H.E. Mann, en banc rehearing 2002.

Says the "Dog"
5.26.2009 11:52pm
OrinKerr:
Ox writes:
It would be helpful if Orin included the links that Lithwick makes part of her story, which clarify the meaning of what she says there by linking to another article about how Democrats should approach Republican nominees. By the time of the Alito hearings, Lithwick had obviously learned something from the earlier Roberts nomination proceedings and argued accordingly. But that doesn't come through because Orin omits the hyper-links -- which I think is basically equivalent to misquoting her.
Ox, if I understand you correctly, you see Dahlia's decision to link to that column as implicitly stating an apology for what she wrote before in a column that she didn't link to, and as recognizing she was at fault before and that she has learned since then -- indeed, that this is so "obvious" that to take out the hyperlink is akin to misquoting Dahila.

I suppose I find that a really surprising claim-- it never occurred to me that Dahila would think that way. I would also add that Dahlia's writing since 2006 appears inconsistent with the hypothesized chain of events that you see as "obvious." But then I would guess that Dahlia will at some point read the thread (hi Dahlia! sorry about this - just business), and if she meant the hyperlink that way, I hope she will say so and I will of course add an update.
5.26.2009 11:52pm
Oren:
JYLD, thanks for the cite. Good stuff.
5.26.2009 11:55pm
AJK:


Since Lithwick is a Democrat, doesn't that mean that she now regards her 2005 behavior as a profound mistake? '


Except that her quote seems to be implying that she didn't make that mistake; the 2005 article makes it clear that she did.

As Lithwick inconsistencies go, it's not nearly as bad as this one:

May 11, 2009

But as used by the president, the word empathy does not strike me as "code" for anything. I don't believe he used it as a proxy for female or for varied life experiences or for something that exists outside of the law at all


May 20, 2009
It now seems almost a given that when the president talks about "empathy," what he really means is "woman."
5.26.2009 11:55pm
Ricardo (mail):
BTW, not to defend Rush Limbaugh, but I would note that he has a certain respect for the law, even when he disagrees with it--in part, I suspect, because his father was a prominent Missouri lawyer, as his brother.

Limbaugh should thank the "empathy" on the part of the Palm Beach State Attorney in agreeing to settle the felony criminal case against Limbaugh for forging prescriptions without him getting a criminal record. He can also thank federal prosecutors for their empathy in not pursuing both this case and another case where he was caught by U.S. customs bringing V***ra into the U.S. without a valid prescription.

According to the letter of the law, Limbaugh should have a felony criminal record by now. For the record, I think the war on drugs (and the war on prescription drugs in particular) is idiotic. But that is to say I think these laws are not worthy of respect.
5.26.2009 11:59pm
OrinKerr:
AJK,

I think her comment makes more sense if you consider the full paragraph:
It now seems almost a given that when the president talks about "empathy," what he really means is "woman." In fact, Obama seemed to mean several things when he stated that empathy would be a dominant factor in selecting his nominee to replace Justice David Souter. He hastily signaled his intention to nominate a woman, simply in that five of the six nominees on his shortlist are women. But he also has gone out of his way to explain that empathy means the ability to put oneself in someone else's shoes. Obama has stated that his ideal justice would consider the lives of the ordinary people who will be affected by the court's decisions in addition to the formal requirements and logic of the relevant laws.
I don't read the full paragraph as inconsistent with what she said earlier. ( I should add that I don't think I ever heard anyone suggest that empathy has something to do with gender, and the idea didn't occur to me, but that's neither here nor there.)
5.27.2009 12:01am