Dahlia Lithwick writes cute, sassy legal analysis for SLATE. As I noted here (and liked the description so well that I used it again here), she is “known more for the sizzle than the steak of her columns.” Although she is reluctantly willing to prick a liberal balloon or two on occasion, what heavy artillery she has is always reliably aimed at conservatives.
A Switch In Time?
Ms. Lithwick has just changed her tune on an important matter, the selection of federal judges, calling to mind another famous switch from that other New Deal — you know, that earlier one led by the pre-Obamian, Franklin Roosevelt. Frustrated by the Supreme Court’s obstreperous objections to much of his New Deal legislation, in February 1937 Roosevelt introduced legislation to add up to six new Supreme Court justices, arguing that too many of the sitting judges and justices were too old and feeble to understand what he was doing. (His plan would have allowed one new federal judge, or Supreme Court justice, for every sitting judge/justice who had served at least 10 years and hadn’t retired or resigned within six months of turning 70.)
“A lower mental or physical vigor leads men to avoid an examination of complicated and changed conditions,” FDR argued. “Little by little, new facts become blurred through old glasses fitted, as it were, for the needs of another generation.” To put it another way, the Court’s conservatives, who were committed to such outdated “horse and buggy” notions as limited constitutional government and the protection of both economic and political liberty, kept getting in the New Deal’s way.
Justice Owen Roberts and one or two of the other Court conservatives are said to have seen the writing on the wall. In any event, they began voting to uphold New Deal measures and FDR’s court-packing plan was soundly defeated in the Senate, leading to the famous quip that the Court’s sudden change of direction was “the switch in time that saved nine.”
Now for Ms. Lithwick’s timely switch: she has decided, no doubt totally uninfluenced by the presence of a new Democratic president and a Democratic majority in the Senate, that the nomination of federal judges has become far too rancorous. Now it’s time to make nice and be civil. Writing in the Los Angeles Times yesterday, she now expresses sad misgivings over the probability that “we’re facing the same old partisan civil war over the makeup of the federal judiciary,” and as a result there will likely be “no end to the vacancy crisis on the federal bench, or to the looming crisis in confidence in the process.”
The stakes are high. The issues that divide us deeply and seem never to get solved — abortion, guns, gay marriage, the mingling of church and state — play out in federal courtrooms, turning judges into lightning rods and confirmations into cartoonish battles between “good” and “evil.”
Maybe it’s not surprising, then, that public figures spew the most extraordinary rot about judges, especially Supreme Court justices….
Looking forward (literally, I’m sure) to President Obama’s judicial nominations (“Obama almost certainly will get to appoint one or more Supreme Court judges — four are over the age of 70”), the newly moderate, sober, and responsible Ms. Lithwick now assures us that
There is nothing to be gained by continuing down this road of mutually assured confirmation nastiness…. More profoundly, the public sense that judges must live above the sharp elbows and kidney punches of the political process cannot survive many more rounds of the judicial wars.
We should stop the escalating smear tactics and the grandstanding…..
How nice. How convenient that the time has come to end the culture war’s nomination spit balls just when her team is coming up to bat. She neither exuded no such rectitude nor counseled such restraint when a Republican president was nominating judges. Should Senators refrain from probing the “moral judgments” of judicial nominees? Not if they had been nominated by George Bush. As I quoted her, here, where she discussed the “moral judgements” of nominees who were Federalist Society “pets”?:
And if you suspect that all judges inevitably make such moral judgments, you might seek to uncover from where such moral judgments come. When your inquiry proves fruitless (i.e., you are stonewalled), you may wish to turn to other sources to refute the notion that nothing in a person’s history or ideology is reflected in his (or her) moral judgments.
Here is what she thought of Roberts’ (and the Democrats’) performance in his nomination hearings, as she explained on NPR:
Senate Democrats have had it up to here with ‘John Roberts the lawyer.’ And it’s hard to blame them. John Roberts the lawyer won’t answer any questions. Roberts may be an excellent lawyer, and he may … prove to be an excellent chief justice, but it’s hard to know what to think of him — that is, it’s hard to judge him as the nominee for highest judge in the land — when he evades all the key questions tossed his way. So, is Roberts an ideologue? Roberts says no, and most of us are inclined to believe him. If he really is Scalia-without-the-anger, he’s the most accomplished liar in world history.
And what was Ms. Lithwick’s calm, restrained, professional advice to President Bush when the time came to nominate a replacement for Sandra Day O’Connor? Pick a Chick. As I quoted here here, Ms. Lithwick explained that she had been wrong in the past when she
rejected the arguments that minority candidates serve as proxies for minority views (whatever those might be), or that they create the appearance of a court that “looks like America.” … We need another woman on the Supreme Court. And while we’re at it we need a few more women on the Senate judiciary committee.
Apparently Ms. Lithwick thinks that Justice should look more like, well, her. In any event, her Constitutional reasoning seemed to be, as I argued in that post, that it was important to nominate another woman so Justice Ginsburg wouldn’t be lonely. As she wrote:
… in a speech at Wake Forest University, Justice Ruth Bader Ginsburg joined her colleague Sandra Day O’Connor and first lady Laura Bush in calling for a second woman on the high court. And while she qualified her words, her message was clear: “I would not like to be the only woman on the court,” said Ginsburg.
“Although I would take no pleasure in disappointing Justice Ginsburg,” I concluded,
I’m not sure it’s worth bending the principle of non-discriminatory equal opportunity (or even the hoary old meritocratic principle of picking the person you think is best for the job regardless or race or sex) so that she can have some female companionship.
And what did Ms. Lithwick think of Justice’s O’Connors ultimate replacement”? That he was a “scary” Halloween joke, as she explained in Trick and Treat: Sammy Alito is the whole bag of goodies. (A picture of Alito accompanied her article, over the caption, “Scary Stuff.”) She describes Alito as “the guy in the Scalia costume” who was President Bush’s “perfect Halloween maneurver”: the trick of diverting attention from Bush’s “scandals” and “the treat of a right-wing activist dressed up as a constitutional minimalist.”
If the newly reformed and responsible Ms. Lithwick is now going to warn us of the dangers of “turning judges into lightning rods and confirmations into cartoonish battles between ‘good’ and ‘evil,’” a little embarrassed contrition would have been in order.