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. Follow her on Twitter.

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.

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.

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.

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