More on Lithwick’s Lament

Like David, I was also struck by Dahlia Lithwick’s latest column — and not just for the paragraph David highlights.  Frankly, I initially thought it was some sort of parody piece, as it is so divorced from the history of judicial nomination fights — including fights about which she has written. How does one write an article suggesting that conservative and libertarian legal luminaries have an easier time getting confirmed without any mention of Robert Bork? How does one suggest there would be no reasonable prospect of a filibuster of a Republican president’s nominees without mentioning the filibusters that have actually happened, such as the filibuster of Miguel Estrada, or were attempted, as when 25 Senate Democrats (including then-Senator Obama) voted against cloture of Samuel Alito?  Let’s look more closely at Lithwick’s article, as it suggests a disturbing degree of epistemic closure among parts of the liberal legal elite.

The article starts off with Lithwick remarking that she has found liberal law students are almost “bordering on despair” because the apparent frontrunners to replace Justice Stevens are too moderate or mainstream, and there is so little serious discussion of nominating a true liberal lion to the Supreme Court.

the hardest question I keep getting from liberal law students—and the most painful to answer—is why so few of their heroes are in serious consideration. Let me be clear that Garland, Kagan, and Diane Wood all have admirers and enthusiasts. But for a generation of law students that has grown up revering American Constitution Society stalwarts such as Dawn Johnsen, Eric Holder, Pamela Karlan, John Payton, Laurence Tribe, Goodwin Liu, David Cole, and my own partner in crime Walter Dellinger, among others, the absence of most of these names from even the long shortlist is demoralizing.

They understand that it’s a foregone conclusion that there will be no risky pick for the court. They just aren’t sure what makes their heroes so risky.

If this is true, then these students (and Lithwick) are in a bit of denial about their place on the political spectrum.  The Supreme Court is already slightly to the left of the American public on most major issues.  Prospective nominees who would be to the left of the Court’s most liberal justices are, in turn, on the left-most edges of American politics. However mainstream the views of such liberal academics may be within the academy, they are not mainstream in society at large.  Moreover, most recent pollling shows that as many if not more Americans think the Supreme Court is too liberal as think it is too conservative, and in recent years, insofar as judicial nominations have influenced elections, it has helped the right more than the left (though it may not have had much effect overall).  As the Sotomayor hearings illustrated, few Senators are willing to give a full-throated defense of a liberal constitutional vision, so why would a President push such a nominee on the Court?

Then there is David’s favorite paragraph:

. . .my concern here is with the next generation of liberal law students, who continue to hear the message that their heroes are presumptively ineligible for a seat at the high court, whereas the brightest lights of the Federalist Society—Judge Brett Kavanaugh, professor Richard Epstein, Clarence Thomas, Theodore Olsen, Ken Starr, and Michael McConnell—are either already on the bench or will be seen as legitimate candidates the next time a Republican is in the White House. Look at the speakers list of the last national Federalist Society conference and tell me the word filibuster would have been raised if John McCain had tapped most of them. Not likely, because they’re all perceived as smart, well-respected constitutional scholars and judges.

So can someone please explain to America’s progressive law students why most of the liberal speakers at their national conference are already confirmation war punch lines? Is there some kind of false equivalency between the two groups that makes ACS “outside the mainstream” while the Federalist Society not only represents the mainstream but renders anyone outside of it hysterical? Why should conservative law students be moved and inspired by their legal rock stars while liberals are sent the message that theirs are outrageous?

Then-judge Thomas was excoriated by then-Senator Joe Biden for having said nice things about Richard Epstein — as Biden brandished a copy of Takings — how could Lithwick think Epstein would be a “legitimate” candidate for the Court?  Michael McConnell, who was among the most prominent constitutional law scholars of his generation and a well-regarded Supreme Court advocate — was still a controversial nominee to the U.S. Court of Appeals for the Tenth Circuit, and it took over 14 months for the Senate to confirm him.  And, as David observes, note who’s not on Lithiwick’s list — the conservative equivalents of her liberal heroes.  At the same time, she doesn’t note the numerous reliably liberal judges and former DOJ officials who would be viable candidates, such as Seth Waxman.

And what could drive Lithwick to suggest that a filibuster would not be raised were a President McCain to nominate Federalist Society luminaries?  She should remember the filibuster of Miguel Estrada to the U.S. Court of Appeals for the D.C. Circuit — she wrote about it — as well as Senate Democrats refusal to confirm Federalist Society co-founder Peter Keisler to that same court.  And then there are the 25 Senate Democrats who tried to filibuster Samuel Alito’s confirmation.

Lithwick cites the confirmation of Justice Antonin Scalia as evidence that ideological conservatives can be confirmed to the Supreme Court, while lamenting that an equally ideological liberal, such as Harold Koh, could not be.  Did she really forget about Robert Bork?  He was voted down in the Senate for his ideological views — views that were no more outside the mainstream of American politics than those of Harold Koh. And before Bork there was Bernard Seigan, another prominent academic appointed by a Republican President but shot down by Senate Democrats.  Does Lithwick really forget all this?  Or was she not paying attention because her side was winning?

And then she gets to Goodwin Liu, about whom she writes:

Goodwin Liu faces a brutal confirmation fight tomorrow precisely because he’s been brave enough to speak openly about how he thinks about the Constitution. Strip away the hysteria and distortions, and that’s all he represents: a voice on one side of a centuries-long debate about how to interpret that document.

And perhaps also because he has minimal real legal experience, has called for overturning some significant precedents and — perhaps most importantly — aggressively attacked (and in some cases misrepresented) Roberts and Alito while calling on the Senate to impose an ideological litmus test on prospective Supreme Court nominees. On this point she cites the Tom Goldstein HuffPo piece I dissected here.  Needless to say, I don’t think it helps her case.

Lithwick concludes:

Young people on both sides of the dispute over the Constitution deserve to have their stars. It’s awfully hard to be inspired when your heroes are benched before the game even begins.

But the game hasn’t just begun.  It’s been played for some time — and liberals are now learning what its like to play on the field they created. After years of targeting, attacking and smearing highly qualified conservative nominees, the tables have been turned — and it’s no fun.

[I in advertantly omitted the title when I first posted.  My apologies.]

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