How many ways can Senate Republicans show breathtaking intellectual hypocrisy?

The law, lawyers, and the court.
March 19 2009 7:05 PM

Irony Board

How many ways can Senate Republicans show intellectual hypocrisy?

Illustration by Robert Neubecker. Click image to expand.

Let's stipulate: You hate our nominees, and we hate yours. Our nominees are all godless baby killers and terrorist lovers. Yours are all God-crazed rights suppressors and misogynists. Fine. But isn't it also the case that when you reverse, rewrite, or undermine every rule and standard you've ever laid out for measuring the fitness of a presidential nominee, you become ridiculous—period?

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate

The irony now on display among Republicans on the Senate judiciary committee is staggering. You need to pedal your intellectual bike hard and fast just to get past the hypocrisy of the sudden rule changes: Senate Republicans who, four short years ago, condemned the use of the filibuster as "unconstitutional" and threatened to answer it with the "nuclear option" are now earnestly pledging to filibuster President Obama's judicial nominees, even though he has named just one. (They hate him.) Because, of course, the filibuster isn't unconstitutional when it comes to thwarting "judicial activists."

But it goes so far beyond that. See, for instance, Senate Republicans roughing up Obama's pick for his solicitor general, Elena Kagan, this afternoon on the Senate floor as they voted on her confirmation. She was confirmed by a vote of 61-31. Sen. Arlen Specter, R-Pa., voted nay. Now, Kagan, the dean of Harvard Law School, has been endorsed by every solicitor general serving from 1985 to 2009, including Charles Fried, Ken Starr, Drew Days, Walter Dellinger, Seth Waxman, Ted Olson, Paul Clement, and Greg Garre. While at Harvard, she was acclaimed for brilliant scholarship and an unprecedented willingness to hire scholars from across the political spectrum. So what is it that Kagan is being hassled about by Republicans on the judiciary committee? Her failure to provide sufficient information about her ideological views. Sen. Specter has already publicly spanked her for providing "insufficient answers" to his questions.

Oddly enough, it's always the Democratic nominees who fail to provide sufficient information to the committee. When then-Supreme Court nominee Samuel Alito provided his wispy minimalist haikus in lieu of substantive answers, Specter was out on the ramparts defending him, insisting, "Alito went further than any previous judicial nominee in the thoroughness of his answers." And Specter himself is fond of saying that nominees answer only enough questions to get themselves confirmed. Actually, the opposite appears to be more accurate. Republican senators continue to demand answers until they can find a reason to vote no.

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Kagan has answered and answered and answered. But the Senate still has questions.

See, also, Dawn Johnsen, Obama's nominee for the head of the Office of Legal Counsel. This morning, the judiciary committee approved Johnsen 11-7 in a vote down party lines. Her nomination will now head to the Senate floor. Like Kagan, professor Johnsen (who blogged for Slate's legal blog, "Convictions") answered questions at a hearing, then answered questions and more questions. Johnsen has provided more than 165 written answers to the committee's follow-up questions, including detailed information on terrorism, detainee treatment, executive power, warrantless wiretapping and electronic surveillance, the use of military force and CIA operations against al-Qaida, extraordinary rendition, guidelines for the proper operation of OLC, reproductive rights, the judicial nominations process, a "progressive agenda," voter ID laws, the Supreme Court's decision in Bush v. Gore, enforcing and defending the Constitution, obscenity and child pornography. To name a few. She answered questions about actions she had taken when she served in the Office of Legal Counsel—questions that Bushies like Jay Bybee and Stephen Bradbury, also former OLC lawyers, declined to answer at their own hearings.

What did Johnsen get for her forthrightness? Seven Republicans cast votes against her. Following years of superb legal scholarship and service at OLC, Johnsen was in fact described this morning by Sen. John Cornyn, R-Texas, as lacking the "requisite seriousness" needed for the job. Whether Cornyn's comments reflect blatant sexism on his part or some messianic new standard for legal seriousness I leave to you to decide.

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