How many ways can Senate Republicans show intellectual hypocrisy?
And how did professor Johnsen so affront all the serious Republicans on the committee? An analogy from a footnote in a 20-year-old brief that compared forcing a mother to give birth with slavery in violation of the 13th Amendment—a passing note that has the folks at the National Review so steamy and frothing you could make cappuccino on them. Similarly, Kagan's great sin is that she once signed onto a brief opposing the presence of military recruiters on law school campuses, since their anti-gay policies violated school anti-discrimination rules. It was, as Kagan has painstakingly explained, a legal argument with merit on both sides. That she has been caricatured by her opponents as an "anti-military zealot" for this one act gives new meaning to reckless oversimplification.
Ted Olson gave legal advice to the Arkansas project, but he was confirmed as solicitor general. Dawn Johnson dropped a footnote in a brief, and she's a raging ideologue.
But let's say 20-year-old footnotes and signing your name on a brief really do signify deeply felt ideological views. What did Senate Republicans do with then-nominee John Roberts' 1984 memo defending legislation that would have stripped all school-busing cases from the courts—even when his superiors at the Justice Department thought the proposed bill went too far? Nothing. What did they read into his 1985 memo about nominating a government lawyer for an award program honoring women who changed professions after 30, in which he opined, "Some might question whether encouraging homemakers to become lawyers contributes to the common good, but I suppose that is for the judges to decide"? Nothing. Roberts' Paleozoic views on women freaked out even Phyllis Schlafly, president of the Eagle Forum. But his GOP supporters dismissed these youthful foibles and celebrated him as "nonactivist."
What did the Republicans on the Senate judiciary committee make of then-nominee Samuel Alito's 1985 job application for a high-level position in Ronald Reagan's Justice Department? The one in which Alito reiterated his loyalty to the Federalist Society and referred to the "supremacy" of the executive branch and Congress over the federal judiciary? Or his statement that he believed "very strongly" that "the Constitution does not protect a right to an abortion" and that he was "proud" to help advance that position in the Justice Department, including a proposal to work toward the "eventual overturning of Roe v. Wade and, in the meantime, of mitigating its effects"? Ah, well, that wasn't activism in the manner of a Dawn Johnsen. That was just good lawyering. Confirm!
I am not here to relitigate Roe. I leave that to these folks. I merely observe that 20 years ago, Dawn Johnsen voiced support for abortion—which was legal—and that makes her an activist, whereas 20 years ago Samuel Alito voiced opposition to abortion—which was, still, legal—and that makes him a great constitutional minimalist. Sen. Specter, why is it that your ideologues invariably have open minds and ours have some form of brain damage? Or is it merely that when men hold constitutional opinions for decades they are principled, whereas when women do, they "lack seriousness"?
Never mind. The only person who really wants to hold presidential nominees to their own confirmation promises is Arlen Specter, who actually wanted to hold hearings into whether Alito and Roberts fibbed about their positions at their confirmation hearings! Everyone else understands—quoting Elena Kagan in a book review now—that "when the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce."
Vacuity and farce would be a very generous characterization of today's exercise in doublespeak. Shameless insincerity works, too.
Dahlia Lithwick writes about the courts and the law for Slate.
Illustration by Robert Neubecker.