Macho Nachos

Washington Post Carries Ted Kennedy's Water

The last time liberals wanted to smear a conservative SCOTUS nominee as a pro-segregation racist, they had to hold their nose and let paragon of moral virtue Teddy Kennedy do the dirty work for them:

"Robert Bork's America is a land in which... blacks would sit at segregated lunch counters...

Nowadays, they can just have the Washington Post do it for them. The latest shameful partisan smear is a transparent attempt to throw enough dirt against Roberts that hopefully some of it will stick. Their endgame remains the same: they hope to demonize the squeaky-clean Roberts to the point that his record will become "troubling" enough that they will seem "reasonable" when they block his nomination for refusing to answer questions that no SCOTUS nominee has ever answered.

It is important to remember, in reading this repugnant article, exactly what sorts of "civil rights" policies the Reagan administration fought to roll back - forced school busing and hiring quotas. In other words, "civil rights" measures that had either outlived their time, or have since been almost universally recognized to have gone too far. There's not a prominent liberal today that you will find defending quotas, or even using the Q-word in a speech, except to condemn it.

Powerline reminds us what the issues were in the early 80s:

If one reads long enough, past three authors' breathless rhetoric about "the vanguard of a conservative political revolution in civil rights" and "government antidotes to bias in housing and hiring," one can begin to discern the real issue that the Reagan administration was concerned about -- racial quotas. In education, the issue was busing students out of their neighborhoods in order to ensure government-decreed levels of black representation in public schools. In employment, the issue was attempts to impose numerical balance in the workplace, instead of simply insisting that employees and applicants be evaluated fairly, without regard to race. In voting, the question was whether it was sufficient to make sure that everyone could vote and that legislative districts were not drawn in a way that thwarted the election of African-Americans. Many liberals wished to go further and draw districts in a way that basically ensured the election of a set number of blacks.

But to hear the Washington Post talk, Roberts was ready to lead the charge back to the days of Jim Crow - or slavery, if he could manage it:

In the early 1980s, a young intellectual lawyer named John G. Roberts Jr. was part of the vanguard of a conservative political revolution in civil rights, advocating new legal theories and helping enforce the Reagan administration's effort to curtail the use of courts to remedy racial and sexual discrimination.

Just 26 when he joined the Justice Department as a special assistant to Attorney General William French Smith, Roberts was almost immediately entrusted to counsel senior department officials on such incendiary matters of the day as school desegregation, voting rules and government antidotes to bias in housing and hiring.

Given the rest of this article, you would of course believe that Roberts was in favor of school segregation and bias in housing and hiring:

A review of Roberts's papers from his time at the Justice Department and interviews with his contemporaries show he was deeply involved with the Reagan administration's efforts to recast the way government and the courts approached civil rights.

He wrote vigorous defenses, for example, of the administration's version of a voting rights bill, opposed by Congress, that would have narrowed the reach of the 1965 Voting Rights Act. He challenged arguments by the U.S. Commission on Civil Rights in favor of busing and affirmative action.

You mean to say that Roberts believes in equality of opportunity, rather than equality of condition? Plainly, the man is a racist. Not to mention, he was probably involved in a number of secret societies with a bunch of other wealthy white guys who were determined to crush minority rights at every opportunity:

For young conservatives such as Roberts, many of whom had spent the years of the Carter presidency in elite schools or cooling their political heels, the first two years of Ronald Reagan's presidency were a heady period. Civil rights was an issue of enormous importance to the Republican Party's fortunes and to businesses and local or state governments frustrated by what they regarded as decades of judicial intrusion into their activities.

The special assistants were mostly white males in their twenties who ate lunch almost daily with Smith in his private dining room and then worked late into the night to advance the administration's views.

A shocking revelation, to be sure. Not only is Roberts white, male, and Catholic (!), but he spent much of his time around others who were white, male, and at least potentially Catholic? Conservatives spending time together in a Republican administration? My only surprise is that the WaPo managed to refrain from mentioning Skull and Bones anywhere in this article. It's still early in the confirmation process, though, give them time. The Federalist Society just doesn't sound evil and secretive enough, yet.

To further bolster the charge that Roberts was a radical conservative, determined to force the country back to antebellum days, the Washington Post shockingly found a group of lawyers in the DC area that was non-partisan (*ahem* *cough*) to make the case for them.

These policies provoked substantial controversy when applied to civil rights. The Washington Council of Lawyers, a nonpartisan group that included some government lawyers, said in a September 1982 report that the Justice Department had "retreated from well-established . . . policies," disregarded principles embraced by the courts and Congress, and created new legal precedents that impeded minority rights in employment, housing, voting and education.

Again I repeat, this is all an effort to throw a bunch of mud on Roberts, so that the Democrats will look reasonable demaning answers they've never gotten for questions they shouldn't be asking of a judicial nominee. The WaPo is quite content to carry this water for the Democrats, too:

Roberts's record is being closely scrutinized, and Democrats on the Senate Judiciary Committee say they will rigorously question the Supreme Court nominee on his views of civil rights.

A generation later, it is difficult to discern the extent to which Roberts, a federal judge for just two years, still holds these views and to determine how he might exercise them if the Senate confirms his nomination next month.

Is he still a racist? There's really no way for us to know unless we get him to answer questions, you see?

If the Democrats are really concerned about advocating hiring and housing quotas, let them come up front and say that. If they are determined to bring back forced busing, let's have them advocate that, too. Let's not allow them to use a not-too-subtle charge of racism as a valid pretext for stalling this nomination indefinitely until they force Roberts to state his position on abortion - especially given that, in retrospect, Roberts was on the right side of history.

And make no mistake, this is about abortion. Unless it's about quotas and busing. It's your call, Democrats. But we'll be calling it like it is, and reminding people exactly what you mean by "civil rights" if you press this lie too far.

The Rules of Engagement

The Powerline guys have an interesting piece about the "He Must Answer Questions" line of attack, which seems to be the only arrow in the Democrats' quiver. Specifically, they analyze this WaPo piece by Walter Dellinger, a former lawyer for the Clinton administration.

First, Dellinger lays down some general groundwork for why certain kinds of questions are typically "out of bounds" or simply not answered, and why certain kinds of questions are:

There are legitimate concerns that should make some questions off limits, such as a question about an actual case coming before the court. More generally, nominees should answer questions about past cases and not future ones. And everyone involved in the process should make clear that by answering questions about his views on contentious legal and social issues such as abortion or affirmative action, the nominee is not making any commitment about how he or she would vote on any future case. A nominee may well come to a different view after having read the briefs and heard arguments or may find that his general views do not determine how to resolve the issue raised in a particular case. But with that important understanding, there is no reason why a nominee cannot answer questions that will give senators a meaningful sense of what kind of person the nominee is.

That sounds great, except for the fact that past court decisions are frequently brought before the court again. In fact, with a number of hotly contested court decisions, the veritable certainty exists that commentary on the past decision is wholly equatable with commentary on a future case. For instance, commentary on Stenberg v. Carhart (2000), a past case, could well be construed as commentary on any one of the three federal PBA cases making their way through the court. I frankly don't see how it's good policy to answer those questions.

There's also the fact, as we've noted repeatedly before, that this line of thought has never before been employed during the course of SCOTUS nominations. John Cole and I will be following up on this in more detail soon.

The second issue Dellinger seeks to address, which is really an extension of the first, is an even more egregious violation of principle, and is bad policy to boot:

On the matter of access to records, Dellinger reverses course. Previously, he had signed a letter, along with all other living former Justice Department solicitor generals, stating that memos written by court of appeals nominee Miguel Estrada as an assistant to the solicitor general were properly withheld from the Senate because releasing such confidential documents would unduly chill the candor of analysis by Justice Department lawyers. But Dellinger argues that Roberts is different because (a) he was appointed to his government lawyer job and (b) he is a Supreme Court nominee. The first point strikes me as a distinction without a difference. The solicitor general needs as much candor from lawyers appointed by the president as he does from career civil servants. The second point is just another way of saying that this nomination means too **** much to let principle govern its treatment.

Exactly who is surprised to see Democrats behaving in a way that is consistent with the last sentence of that paragraph?

Buckle Your Seatbelts

John Cole and I are working on an epic-length post on the historical precedents dealing with SCOTUS nominees answering questions on abortion. Keep your eyes open.

Being that this tactic is the only one the Democrats have in this particular fight, look for them to use it early and often. For your convenience, I have set up a section here at MachoNachos that will hopefully serve as a one-stop resource to combat this silliness. Check back as the nomination process continues.

"He Must Answer Questions!" Part 2

Yesterday, in response to Chuck Schumer's shrill demand that John Roberts must answer any question he can think of, and that refusal to answer questions on specific cases and issues is a serious matter indeed, I blasted this contention into oblivion by demonstrating that Ruth Bader Ginsburg didn't answer any questions about much of anything, and sailed through confirmation easily.

Today, with just a smidgeon more research, I have unearthed futher evidence that will hopefully put this tiresome meme to death before it is even fully formed, as we will consider the confirmations of Stephen Breyer and Sandra Day O'Connor herself.

Let's begin with Breyer's hearing first:

SEN. THURMOND: “Judge Breyer, it is likely that Justice Blackmun is most widely known to the public as the author of Roe v. Wade. What was your impression of his majority opinion in that landmark decision? In particular give us your thoughts on where he draws the line at different points during pregnancy as it relates to the state's interest in the regulation of abortion-related services. For instance, do you agree that the first trimester of pregnancy is distinctive and that the state should not be able to prohibit abortion during that period?”

JUDGE BREYER: “… The case of Roe v. Wade has been the law for 21 years, or more, and it was recently affirmed by the Supreme Court of the United States, in the case of Casey. That is the law. The questions that you're putting to me are matters of how that basic right applies, where it applies, under what circumstances. And I don't think I should go into those, for the reason that those are likely to be the subject of litigation in front of the Court.

In response to a question from Senator Specter on the death penalty, Justice Breyer said this:

JUDGE BREYER: “I want to reveal to you my thinking without actually — without actually predicting or expressing a view on a particular case that might come up, and that, as you've said very well, is a question of drawing the line. And you'll correct me, I hope, if you feel I'm not drawing it properly. I want to reveal to you as much as I can without making that — without crossing the line to decide a particular case, for reasons of fairness later on and making people understand —“

When pressed on the issue by Senator Cohen (R-ME), Breyer further demurred:

SEN. COHEN: “I want your personal judgment, not whether it's settled or not, but what you believe.”

JUDGE BREYER: “Yeah. The reason that I'd hesitate to say what I think as a person as opposed to a judge is because down that road are a whole host of subjective beliefs, many of which I would try to abstract from …

Justice Breyer also made this statement, or ones like it, on several occasions, and this one is from some of his opening remarks before the committee:

“I will try very hard to give you an impression, an understanding of how I think about legal problems of all different kinds. At the same time, I don’t want to predict, or commit myself on an open issue that I feel is going to come up in the court.”

One further exchange between Justice Breyer and Senator Alan Simpson (D-WY) should probably suffice:

SENATOR SIMPSON:“To what extent is it constitutionally permissible for Congress to provide the courts with a substantive standard for free exercise of religion claims …?”

JUSTICE BREYER: “you’ve articulated the question exactly that I would imagine is likely to be before the Supreme Court … I have to exercise caution on that particular question. That’s going to be right there.”

Now, how many times have we heard over the past few recent days that the Democrats want a nominee who is just like Sandra Day O'Connor? We can only presume that they mean they want one who doesn't answer controversial questions in committee either:

On abortion:

When O'Connor was called to answer questions before the Senate Judiciary Committee, she refused to say how she would decide abortion cases that were certain to confront her on the court. Anti-abortion activists were uneasy about her, but she was confirmed by a vote of 99-0 -- the strongest acclamation any Supreme Court nominee had ever received.

On pretty much everything else:

"I do not believe as a nominee I could tell you how I would vote."

Let's hope Roberts gets that phrase memorized in short order and uses it as often as possible.

He Must Answer Questions - Part 1

I generally try to avoid posts that poke fun at either Teddy Kennedy or Chuck Schumer on the basis that they're such easy targets, it takes all the fun out of the sport. It's about like hunting cows in Southwest Oklahoma. However, Schumer's response to the Roberts nomination is just too juicy for even me to resist.

After the announcement of Roberts as Bush's first SCOTUS nominee, Schumer wasted no time letting everyone know that he was going to be the one to carry the water for the moonbats this go-round. What was particularly stunning to me was the audacity Schumer displayed in the tactic he is apparently going to use during the upcoming character assass... I mean, confirmation hearings. It appears that Schumer will attempt to beat Roberts around the head for refusing to answer questions:

I voted against Judge Roberts for the D.C. Court of Appeals because he didn't answer questions fully and openly when he appeared before the committee.

I hope Judge Roberts, understanding how important this nomination is — particularly when replacing a swing vote on the court — will decide to answer questions about his views.

I hope, for the sake of the country, that Judge Roberts understands this and opens questions — sorry, and answers questions — openly, honestly and thoroughly.

Gee, what a thorough guy that Chuck Schumer is. Why, he's so goshdarn concerned that the nominee for a position as important as Associate Justice of the SCOTUS would answer each and every single question that he just couldn't allow a nominee who refused to answer "important questions about their views" through. What a stand up guy.

It's convenient, however, that Schumer has forgotten the confirmation of Ruth Bader Ginsburg, whose confirmation hearings were the gold-standard for question refusal in confirmation hearings (Much thanks to our good friends at the Federalist Society). For a bit of important historical background, Democrat committee chair Joe Biden kicked off the hearings by announcing thus:

[T]he public is best served by questions that initiate a dialog with the nominee, not about how she will decide any specific case that may come before her, but about the spirit and the method she will bring to the task of judging. There is a real difference … between questions that focus on specific results or outcomes, the answers to which would risk compromising a nominee’s independence and impartiality, and questions on judicial methods and philosophy. The former can undermine the dispassionate and unprejudiced judgment we expect the nominee to exercise as a Justice. But the latter are essential and contribute critically to our public dialog.” (all emphasis mine)

Ginsburg decided this advice was swell, and took it one step further:

In answering questions before the Judiciary Committee, Justice Ginsburg added her own twist to Senator Biden’s standard for nominees. While Senator Biden had said that a nominee should decline to answer questions about how she would decide a specific case, which suggests that only prospective cases are off-limits, Justice Ginsburg declined to answer questions about her views on both prospective and many historical Supreme Court cases. She also declined to answer questions (or gave non-responsive answers to questions) involving a number of controversial issues, hypothetical facts, or areas in which she is not an expert.

Justice Ginsburg emphasized that judges decide cases based upon real-world facts and that appellate judges are presented with a developed factual record in each case. Justice Ginsburg cited this as a reason to decline to answer questions that were either completely hypothetical or that were vague in their factual underpinnings.

Examples, anyone?

Senator Thurmond. … [B]ased upon your understanding of the U.S. Constitution, do communities, cities, counties and States have sufficient flexibility to experiment with and provide for diverse educational environments aided by public funding and geared to the particular needs of individual students of their particular area of jurisdiction?

Judge Ginsburg. Senator Thurmond, that is the kind of question that a judge cannot answer at-large. The judge will consider a specific program in a specific school situation, together with the legal arguments for or against that program, but it cannot be answered in the abstract. As you well know, judges work from the particular case, not from the general proposition.

Ginsburg also refused to answer questions on very controversial issues, claiming that she was ignorant of the subject matter at hand:

Senator Feinstein. Thank you, Mr. Chairman. Just to try to pursue that a little bit further, Judge Ginsburg , could you talk at all about the methodology you might apply, what factors you might look at in discussing Second Amendment cases should Congress, say, pass a ban on assault weapons?

Judge Ginsburg. I wish I could, Senator, but all I can tell you is that this is an amendment that has not been looked at by the Supreme Court since 1939. And apart from the specific context, I really can't expound on it. It is on area in which my court has had no business, and one I had no acquaintance as a law teacher. So I really feel that I am not equipped beyond what I already told you, that it isn't an incorporated amendment. The Supreme Court has not dealt with it since 1939, and I would proceed with the care that I give to any serious constitutional question.

Ginsburg also flatly refused to answer questions on any case (or even any broad issue) that might conceivably come before the SCOTUS during her tenure:

Senator Thurmond. What are your views on the constitutionality of some form of voucher system, so that working and middle-class parents can receive more choice in selecting the best education available for their children?

Judge Ginsburg. Senator Thurmond, aid to schools is a question that comes up again and again before the Supreme Court. This is the very kind of question that I ruled out.

Senator Thurmond. Would you prefer not to answer?

Judge Ginsburg. Yes.

Senator Brown. I wanted to cover one last area, and it may be an area you would prefer not to explore. If you do, I would certainly understand. I believe earlier on Senator Cohen and others had brought up a question with regard to homosexual rights.

Judge Ginsburg. Senator Brown, I am so glad you prefaced this by saying you would understand if I resisted a response, because this is an area where I sense that anything I say could be taken as a hint or a forecast on how I would treat a classification that is going to be in question before a court, and ultimately the Supreme Court. So I think it is best that I not do anything that could be seen, be used as a prediction of how I might vote with regard to that classification.

Ginsburg also (and this is of quintissential importance) declined to give anything that might be construed as a personal view, even if it had nothing to do with law:

Senator Pressler. Are you uncomfortable that the Constitution's Bill of Rights does not extend to Native Americans?

Judge Ginsburg. I can't express my personal view on that subject.

*********

Senator Simon. [I]f I can ask, not in commenting on the substance of the Alvarez case--incidentally, he was tried in the United States and not found guilty--but were you at all startled, when you heard about the results of the Alvarez case?

Judge Ginsburg. If I may, Senator, I would not like to comment on my personal reactions to that case. I think I told you what my view is on how U.S. officials should behave, and I would like to leave it at that. This was a decision of the United States Supreme Court that you have cited, and I have religiously tried to refrain from commenting on a number of Court decisions that have been raised in these last couple of days.

***************

Senator Specter. Let me ask you a question articulated the way we ask jurors, whether you have any conscientious scruple against the imposition of the death penalty?

Judge Ginsburg. My own view on the death penalty I think is not relevant to any question I would be asked to decide as a judge.

So, let's review. Ginsburg, during the course of her hearings, for one reason or another, refused to answer questions about Second Amendment rights, homosexual rights, school vouchers, property rights, the death penalty, her personal views on anything, or upon any case or issue that might conceivably come before the court during her tenure.

I'll bet the Republicans didn't take that, though! I'll just bet they didn't let her slide by without answering those questions! I'll bet they demanded to see documents! I'll bet they placed a hold on her nomination! I'll bet they at least voted "No!"

Oh wait, nevermind. 96-3.

Like I said, it's too easy.