Extraordinary Hypocrisy

How Republican senators justified their decision to kill the nomination of Goodwin Liu.

By Dahlia Lithwick

It was a hall of mirrors of hypocrisy at Thursday’s Senate vote on the nomination of Goodwin Liu to be a judge on the 9th Circuit Court of Appeals. At least 60 senators had to agree to allow the Senate to give Liu a straight up-or-down vote. Didn’t happen. Liu, a professor of law at the University of California at Berkeley, is the first judicial nominee to be filibustered since 2005.

First, there are the most obvious failures of intellectual consistency: Republicans who once claimed that filibustering judicial nominees is “offensive to our nation’s constitutional design” (Sen. John Cornyn, 2004) and flat-out “unconstitutional” (Sen. Lindsey Graham, 2005) voted against Liu. Even the Republican who said he “will vote to support a vote, up or down, on every nominee—understanding that, were I in the minority party and the issues reversed, I would take exactly the same position because this document, our Constitution, does not equivocate”—even that guy (Sen. Johnny Isakson, 2005) voted against Liu.

You can blame Senate Majority Leader Harry Reid for forcing the Liu issue, or the White House for abandoning it. But nothing changes the fact that the judicial confirmation détente of 2005, when the so-called “Gang of 14” pledged that honorably fulfilling its constitutional responsibilities meant that “nominees should only be filibustered under extraordinary circumstances,” is over. The era in which the self-styled grownups on both sides agree that the judicial vacancy rate represents a national crisis, and that the Senate’s responsibility to advise and consent does not extend to delaying and distorting, is over, too.

It’s not just a return to business as usual for the judicial confirmation process. It’s the return of the race to the bottom. Here’s a good idea: Let’s fight about who started it for a while. Neither side is blameless for the degeneration of this enterprise into a stew of insults and umbrage. But Republicans must take all the responsibility for their decision that Liu was the man over whom they should go to war.

Goodwin Liu is many, many things (disclosure: I have met him several times), but an “extraordinary circumstance” he is not. Liu is a Yale and Stanford graduate and associate dean of one of the many Top 10 law schools in the country. He received the highest possible rating from the American Bar Association and endorsements from legal thinkers from across the political spectrum, including Kenneth Starr and Clint Bolick.

But Senate Republicans were set on making an example of Liu, who was nominated well over a year ago. As Doug Kendall of the Constitutional Accountability Center explained today, the Republicans who opposed Liu’s nomination “were completely ignoring what Goodwin Liu testified to under oath,” instead relying on “a distorted interpretation of things he said years ago in his scholarship.” It was as if the sworn testimony had never even happened. Liu testified not once but twice before the Senate Judiciary Committee, and he was unfailingly temperate, scholarly, and sober. Yet from the start Republicans depicted him as the Tim Riggins of the legal academy—all beer-soaked hair and bloody knuckles—and never varied that picture in the face of the evidence. The caricature of Liu as careless and reckless and “wacky” never dimmed, even while it never fit. A few lines plucked from a few articles, repeated on an infinite loop, obscured one of the most thoughtful and serious legal minds of a generation.

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.

Head. Exploding.

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.