Adam Serwer has suggested that the opposition to Liu was petulant payback for Liu's admittedly scathing 2006 testimony against Justice Samuel Alito. (Liu testified at the time that "Alito's record envisions an America where police may shoot and kill an unarmed boy to stop him from running away with a stolen purse; where federal agents may point guns at ordinary citizens during a raid, even after no sign of resistance; where the FBI may install a camera where you sleep on the promise that they won't turn it on unless an informant is in the room; where a black man may be sentenced to death by an all-white jury for killing a white man, absent a multiple regression analysis showing discrimination; and where police may search what a warrant permits, and then some.") Liu has since admitted that his words were "unduly harsh," although he has declined to recant the substance of his criticisms, and Alito continues to give us reason to believe that at least some of those predictions about warrants were accurate. Kevin Drum agrees that it's the umbrage that really fueled the opposition to Liu. Certainly, John McCain and Graham used it as their main indictment. So did Mike Lee (R-Utah).
But stop and think about the absurdity: Liu's alleged crime was meanness in pointing out (meanly) that Alito was mean. The reduction of every last judicial nominee to the cruelest thing he or she ever did or said (Alito as a racist; Sotomayor as racist man-hater; Kagan as loather of the armed services) seems to be the only legal litmus test we seem to have left. And now Liu has the distinction of being the first nominee to be called a bully for having called another nominee a bully.
The idea that Liu's condemnation of Alito was so injudicious as to render him unfit to serve is as absurd as the rest of the arguments against him (hater of the constitution, lover of things foreign, maker-upper of new rights). Liu is not the first judicial nominee to speak about politics and the court in overtly partisan terms. He is not the first judicial nominee to criticize the Supreme Court or its decisions. If Liu's original sin is that he insulted someone at a confirmation hearing, there is hardly a member of the Judiciary Committee who isn't a big, fat bully as well. At least Liu had the good grace to take it back.
It's not just the inane kindergarten quality of a national constitutional dialogue reduced to a fight about who hurt whose feelings at the finger-painting table. It's also the inane kindergarten quality of all future legal discourse if this is the only benchmark by which an individual is to be judged. If the "extraordinary circumstance" that renders Liu unfit to serve is a rant about the implications of constitutional conservatism, let's all agree that the legal academy should hereinafter confine itself to bracing discussions of domestic cheeses. This is not a smart game for either side: Ignoring substantial scholarship, testimony, and a lifetime of legal work in order to read menacing intent into a few errant statements.
It's simply a terrible mistake to reduce a nominee to their small acts of meanness, real or imagined. Because we are all of us mean. That isn't a defense of ever-more-toxic personal attacks. It's a defense of the proposition that the measure of one's entire judicial temperament cannot be reduced to a single gotcha footnote in an article, or a single provocative sentence in a speech. Those are only "extraordinary circumstances" in the life of someone who has spent their whole public life sitting in a cave watching cartoons. And if that seems like a radical idea, I would remind you that it's precisely the proposition that the Gang of 14 ostensibly agreed to back in 2005.
TODAY IN SLATE
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Smash and Grab
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