Slate's Dahlia Lithwick has a blistering column attacking conservatives for opposing Judge Michael Mukasey's nomination as attorney general. There's one big problem with her argument: it ignores the fact that the overwhelming majority of conservatives are supporting the nomination, not opposing it.
Lithwick herself cites the endorsements of Mukasey by Bill Kristol (the most prominent neoconservative pundit), and Andrew McCarthy in the National Review (the most important mainstream conservative opinion journal, which also endorsed Mukasey in this editorial). By contrast, the only conservative she actually quotes as opposing Mukasey is the obscure Brian Burch of the little-known "Catholic-based advocacy group Fidelis," who has doubts about Mukasey's position on abortion. Yet Lithwick's article reads as if Kristol and the National Review are exceptions and Burch is the rule. Perhaps Orin Kerr is right, and Lithwick is the victim of a crafty White House effort to make it seem like there is more conservative opposition to Mukasey than actually exists. Even so, a legal journalist for a major online publication should know enough about the conservative scene to be able to tell the difference between widespread opposition and a small number of holdouts.
Lithwick also makes a silly argument in claiming that those conservatives who are concerned about praise for Mukasey by prominent liberals such as Senator Charles Schumer and Nan Aron are engaging in "hysterical partisanship." Given limited information, one way to judge a political figure's views is to look at the views of those who support him. You don't have to be a "hysterical partisan" to use this admittedly imperfect information shortcut. If a Democratic President nominated an AG who had been warmly praised by, say, Dick Cheney, I doubt that Lithwick would denounce liberals who were concerned about it as irrational or "hysterical." Especially not if the president were politically weak at the time, and had incentives to make nice with a Republican-controlled Congress. In this case, conservative concern about Mukasey is misplaced (which is one reason why the vast majority of conservatives are supporting him). Mukasey's writings (see here and here) and record on the bench show that he is pretty clearly conservative, even if he does reject some of the Bush Administration's more extreme claims of inherent executive power. But that doesn't mean that all such concern is "hysterical partisanship."
UPDATE: I have changed one passage in the original post to make it clear that, in the hypothetical case of a Democratic nominee praised by Dick Cheney, Lithwick would not have denounced as irrational or hysterical liberals who were concerned about the nomination. Whether she would actually oppose such a nomination herself, I don't know (though it wouldn't be completely surprising if she did, and I would not claim that she was a "hysterical partisan" if such a thing were to happen).
UPDATE #2: For more evidence of conservative support for Mukasey, see this supportive post by Ed Whelan, President of the Ethics and Public Policy Center (a prominent social conservative think tank).
Related Posts (on one page):
- Dahlia Lithwick on Conservative Opposition to Mukasey:
- The White House and Conservative Concern About the Mukasey Nomination:
Of course, Slate's overall quality of content is consistently questionable.
Maybe if I look hard enough I'll find some bias in Professor Somin's writings. By the way, why is Ms. Lithwick's piece described as "blistering?"
It's not a question of bias. Bias in an opinion article isn't objectionable. It's a question of accuracy and logical coherence.
Maybe if I look hard enough I'll find some bias in Professor Somin's writings.
Maybe you will.
But you won't find glaring inaccuracies like this one.
By the way, why is Ms. Lithwick's piece described as "blistering?"
Perhaps because she accuses those who disagree with her of things like "hysterical partisanship."
Truth is a defense to libel. The phrase "hysterical partisanship" is her word, not mine.
Also, I don't think Ilya is persuasive in defending the "Schumer and Aron support him, so there must be something wrong" reasoning. I have no problem with voters doing this in elections when they don't have time to learn about the issues. But is it too much to ask a pundit to do a little preliminary research and make up his or her own mind?
My sense is that Lithwick's basic move is to draw a caricature of people she disagrees with and then to poke fun at how nutty the caricature is. Readers enjoy it because it's fun; the caricatures are often entertaining. Being accurate would ruin the fun in most cases, as it's much harder to write good zingers when the facts aren't outrageous.
Talk about ironic. So it's not true that some of the reaction from the right to Mukasey is hysterical partisanship? Secondly, where does glaring inaccuracies come from? She doesn't mention that ALL conservatives oppose Mukasey. But even the ones who do support Mukasey have to account for Democratic support, as though that's some sin.
Is it glaringly inaccurate to not account for your hypothetical Democratic appointment with Cheney support? How about a Democratic appointment of two Supreme Court justices with hearty Orin Hatch support? Is it glaringly inaccurate to assume that there is "limited information" about a federal judge of nearly two decades?
What she said was:
That's quite different from "conservatives don't agree with me and thus must be hysterically partisan."
Moreover, her piece is based, in part, on the characterizations in the Time magazine article that she links to, which is the source of most of the predicate points about conservative objections to Mukasey. Time thus deserves a large measure of blame (if any blame is due).
I'll also go out and say this now - I think this unprovable hypothetical is silly. If Cheney said something along the lines of "I completely disagree with his views on terrorism, on security, and on executive power, but I happen to have spent time with him in Congress and he is a decent man," I don't think you'd get that much concern. Maybe some because you are specifically using a person who has a particular reputation for deceit, but that's not applicable to the liberals who have supported Mukasey in the same exact manner. Replace Cheney with a slate of support from Lindsay Graham, Orin Hatch, Orin Kerr, and Jack Goldsmith, and I think such support would be *touted* as reasons for confirmation by most liberals - and I have no reason to believe the few dissenters would have been supported by Lithwick.
The point is not that she would have supported them, but that she wouldn't have denounced them as "hysterical partisans."
Levin didn't oppose Mukasey's nomination. he merely said that he is not sure about him and that he is probably not the "best candidate." See here.. In any event, Levin, while less obscure than Burch, is still far less prominent than the numerous conservatives supporting Mukasey.
The glaring innacuracy is the attempt to create an impression that the majority of conservatives oppose Mukasey and do so for idiotic or "hysterical" reasons. For the reasons I indicate in my post, even those few who do oppose him are not, for the most part, "hysterical" or stupid, though they are misguided.
Is it glaringly inaccurate to not account for your hypothetical Democratic appointment with Cheney support? How about a Democratic appointment of two Supreme Court justices with hearty Orin Hatch support? Is it glaringly inaccurate to assume that there is "limited information" about a federal judge of nearly two decades?
Orrin Hatch was not nearly as partisan (at least back in the early 90s) as Schumer is today.
And there is indeed "limited information" about Mukasey's views on many domestic legal issues. Moreover, even if the information is available, pundits who have to react to a nomination on the same day often have not had a chance to fully study that information. In such a context, it is rational to use information shortcuts - even though those shortcuts will sometimes mislead. At the very least, it is not "hysterical partisanship" to do so.
Bill Kristol is one by "self-designation" as well. He has coauthored a book entitled "The Neoconservative Imagination," and often describes himself as a neoconservative.
I also tend to think highly enough of Ms. Lithwick that if Democrats opposed a nominee because certain right wing figures "d[id] not reflexively loathe him," she would probably also cite this as an example of "hysterical partisanship." In any event, in the absence of evidence that she wouldn't take that position, it is more than a stretch to indict her for hypocrisy, as the post appears to try and do.
In all seriousness Ilya, don't you think this statement is influenced by your own political views? Did Schumer ever vote to impeach the President of the United States for basically nothing? OK, that's late 90's. Here's early 90's: Did he ever regularly appear on the radio show of someone (Rush Limbaugh) who regularly accused and/or intimated strongly that the President of the United States and his wife had an aide of theirs murdered and covered it up by faking his suicide?
In all reality, I don't think there is an objective measure for "partisanship" so I don't know who is more partisan: Hatch in the '90's or Schumer today. But I am damn sure that both of our political opinions would influence our measurement of such partisanship. Here's an example: When Schumer does something, like speak out against the nomination of Brett Kavanaugh, I see it as a principled stand against a right-wing hack whose only claim to fame is writing dime-store pornography entitled the "Starr Report." You, however, see it (likely) as "partisanship" and a cheap way to earn points by trying to block a qualified judicial nominee.
No, but he did vote to filibuster judicial nominees for basically nothing. And by "basically nothing," I don't mean "obstruction of justice" the way you do by that phrase.
That's quite rich. Compare Schumer's filibusters to the number of judges who never got out of committee under Hatch when he ran the Judiciary Committee in the 90's. I guarantee you that the numbers Hatch held up are several orders of magnitude higher than the dozen or so judges who got filibustered by the Dems with Schumer supporting. You just got owned, but thanks for trying. In any event, you missed my point -- not surprising that your reading comprehension is not much better than your knowledge of history.
I think it's pretty clear that she meant to suggest that a majority of conservatives oppose Mukasey, or at the very least, that a large and influential minority does so. Further strengthening this influence is her comparison of the opposition to Mukasey with the conservative opposition to Harriet Miers (who was indeed opposed by a majority).
If it were only a tiny number of people with little or no influence, there would be no point to the article. You can find a small number of insgnificant conservatives somewhere who would oppose almost anything.
Any "opposition" by conservatives is indifference due to the perception that the President backed away from a worthy and winnable fight for Olson or someone like him to nominate a bland unknown like Mukasey.
You presume that when Liberals speak of orders of magnitude we apply the conventional factor of 10. This probably won't make sense to you since your Conservative brain locks up in response to new input, but this week we're using a factor of 3.
(Further, even if one could establish the hypothetical, the most one could prove with the argument would be hypocrisy; it wouldn't prove which time the person was right. Maybe they were wrong before and they're right now.)
As I have pointed out in response to comments in the past, you should not assume that I agree with a criticism just because I didn't respond to it. If I really do agree with it, I would post an update in the original post whatever I said that I no longer agree with.
As for the Hatch vs. Schumer issue that I think led to this comment thread, I will note that I referred to Hatch "in the early 1990s" as being less partisan than Schumer. At that time, Hatch had not yet held up Clinton judicial nominees or done most of the other things that Democrats later came to dislike him for. Therefore, Hatch endorsing a nominee circa 1993-94 was not nearly as much of a lightning rod to Democrats as Schumer endorsing a nominee would be to Republicans today. I was already an adult in 93-94 and well remember that Hatch did not figure very much in Democratic demonology at the time (although some other republicans, e.g. - Jesse Helms, did), whereas Schumer is certainly a prominent object of hostility for Republicans today.
1) Brian Burch
Can anyone here cite a second?
Ms. Lithwick, you there?
But this should put a rest to Hatch's supposed "reputation" in the early 1990s:
Hatch's
In fact, I expect that these measures already exist in a variety of different formats, and they are occasionally used in media stories - often to indicate how often a "liberal Republican" or "conservative Democrat" votes with the other party.
I won't spend the time to look it up on voting, but anecdotal evidence (high-profile bills) leads me to believe that Hatch has been significantly less partisan than Schumer for sponsorship/authorship questions.
Nick
The article explains that Hatch was the most active and aggressive Republican in fighting Democratic nominees. I thought that might be more on point than symbolic rants about evil Democrats, but whatever. You are just too clever.
Nick
When one uses the filibuster because one is in a minority, this subverts the majority-rule principle, which is supposed to prevail in this case (though not in all cases). There are specific cases where super-majority votes are required, but this is not one of them. And there are precedents for using the filibuster in certain extreme situations—but again, judicial appointments was not one of them. So when the Democrats started using the filibuster to oppose judicial appointments, when there was a Republican President and Republican rule in both chambers of commerce, it was simply gumming up the way that our government was designed to work. This was the reason there was such an outcry; the Congress is entrusted with an advise and consent role, and the majority (that is, our representatives, and so theoretically something like a geographically-diverse majority of us) is supposed to be able to nominate. That's what elections are for: to determine where the majority is, and then allow that majority to make policy.
Of course, both parties have used the filibuster in many different circumstances, and I'm by no means defending every time Republicans used it. But you have to recognize there is a very fundamental difference between holding up a nominee via vote or committee proceedings when one is in the majority, and doing so by filibuster when one has failed to win the majority.
Amazingly enough, these groups rated virtually every last Republican senator as being a right wing extremist. Who would have thunk it?
Post again when there's news?