One of the more effective rhetorical arguments the Republicans are making, is that they confirmed Ruth Bader Ginsberg 96-3, even though she was affiliated with the ACLU. Therefore, the reasoning goes, the Democrats should be willing to confirm a very conservative judge, so long as he is well qualified and doesn’t have any ethical problems.
On the surface of it, this argument is pretty solid. But it is highly misleading.
To begin with, Ruth Bader Ginsberg was not Clinton’s first choice. Clinton chose Ginsberg, at least in large measure, to avoid a nasty confirmation fight.
Here is an account from Orrin Hatch’s autobiography:
President Clinton indicated he was leaning toward nominating Bruce Babbitt, his Secretary of the Interior, a name that had been bouncing around in the press. Bruce, a well-known western Democrat, had been the governor of Arizona and a candidate for president in 1988. Although he had been a state attorney general back during the 1970s, he was known far more for his activities as a politician than as a jurist. Clinton asked for my reaction.
I told him that confirmation would not be easy. At least one Democrat would probably vote against Bruce, and there would be a great deal of resistance from the Republican side. I explained to the President that although he might prevail in the end, he should consider whether he wanted a tough, political battle over his first appointment to the Court.
Our conversation moved to other potential candidates. I asked whether he had considered Judge Stephen Breyer of the First Circuit Court of Appeals or Judge Ruth Bader Ginsburg of the District of Columbia Court of Appeals. President Clinton indicated he had heard Breyer’s name but had not thought about Judge Ginsberg.
I indicated I thought they would be confirmed easily. I knew them both and believed that, while liberal, they were highly honest and capable jurists and their confirmation would not embarrass the President. From my perspective, they were far better than the other likely candidates from a liberal Democrat administration.
In the end, the President did not select Secretary Babbitt. Instead, he nominated Judge Ginsburg and Judge Breyer a year later, when Harry Blackmun retired from the Court. Both were confirmed with relative ease.
In the case of Samuel Alito, President Bush did not confer with Patrick Leahy prior to making the nomination. If he had, there is no doubt that Leahy would have tried to dissuade him from selecting someone so conservative. If Leahy had offered an alternative jurist that he found acceptable, and if Bush had taken his suggestion, then it is quite possible that that nominee would be confirmed with 90-something votes.
Another important difference between Alito and Ginsberg has less to do with the nominees than with changes on the Supreme Court. In the past, the court strove to acheive unanimous decisions (or at least large majority decisions). In more recent times the court has been unable to achieve this, and has decided an unusually high percentage of cases 5-4. The justice Alito has been nominated to replace, Sandra Day O’Connor, has been the deciding vote on many of those cases.
So, unlike Ginsberg, Alito would enter a court where he would wield unsual power. Many cases would be decided differently from how the present court decided them.
Put simply, there is a lot more at stake in the Alito hearings than there was in the Ginsberg hearings. It isn’t personal, it’s strictly judicial.
So, when Lindsay Graham decries the partisanship of the hearings and laments the fact that Alito is unlikely to get anywhere near 90 votes, I can sympathize with his argument to a point. But, he is also being disingenuous. Ginsberg was Orrin Hatch’s suggestion. He did not have to suck up the fact that she worked for the ACLU and hold his nose to vote for her. He recommended her.
Ginsberg was Hatch’s suggestion.
Isn’t BooMan’s story great?!
Said so plainly. And with a great retort to the GOP talking points using Ginsberg as an example.
then there’s this:
I cannot get over how STUNNED I was to hear Patrick Leahy live on C-Span Monday morning say that he was not invited to speak with regard to his opinions, or even given the courtesy of a meeting with Samuel Alito prior to this week’s hearings.
Go right to the top, and tell ’em “No” to Alito’s confirmation:
Phone, fax, and email addresses for the Judiciary Committee.
Here’s another “Veto Alito” tool:
Write a letter to the editor of your local paper and contact your congress critters — all with one click.
People for the American Way has collected over 60,000 signatures to send to the Senate, please add yours:
Save the Court Petition
If you throw away the Court, you throw away your main leverage to keep us in the Party.
Is it just me or did anyone else think of Godzilla vs. Mothra when you saw the title 🙂
I’m rooting for Mothra. And Lindsay Graham can bite my toucas.
the ACLU is not a “liberal” or “leftist” outfit. It defended Rush Limbaugh against questionable searches related to his drug crime case. It opposed campaign reform as an impediment to free speech (totally wrongheadedly, IMO). It has sided with the NRA on more than one gun control issue. The list could go on and on.
In this era of spin and lies, it is a constant pain to see liberals, Dems, and lefties buy into the propaganda that the ACLU is a barometer for “liberal”. It is manifestly not. The blind thoughtlessness with which our side buys into the rightwing spin does much to explain why we keep slipping behind even though most of the country backs our ideas and opposes those of the radical right that Bush represents.
Absolutely! DarkSyde has an excellent interview with Ed Brayton, who explains extremely well that the only way that the right can maintain the fear of this scary defender of Americans civil liberties is to simply lie about them.
He gives examples of several important cases where the radical right tell their sheeple that, “We triumphed over those evil ACLU commies on this case!” when in fact the ACLU was on the same side.
They just make shit up. Liars.
A good one to bookmark. Excellent ammunition when arguing with aforementioned sheeple.
they’re leftist from the standpoint that a huge swath of the modern GOP does not have any respect for civil liberties.
They might respect the 2nd amendment. They might value free speech in theory. But they are no friends of the 1st amendment.
It looks like the are not huge fans of the 4th, 5th and 14 amendments either.
So, with the exception of the libertarian holdouts, the modern right is opposed to the ACLU.
And a judge that works for them is seen as hostile to the GOP agenda as we think a judge that works for the Chamber of Commerce is opposed to ours.
Of course, the Chamber of Commerce is not a strictly rightwing organization. But they do oppose us on most issues.
Overall, you’re right to make this criticism. Yet, they make their own reality. They shouldn’t consider the ACLU a leftist organization, but they do.
I got over that some time ago. What gets me in rant mode is the helpless silence of “our” side when bullshit like this comes up. It would be easy to ask: you mean like when they defended Rush? When they opposed campaign reform? When they sided with the NRA? But no, they just meekly accept that ACLU=”liberal extreme”, and so is just a mirror image of, for example, some Princeton little boys’ club that engaged in outright homophobia, racism, and advocacy of blatant discrimination.
By doing so, they shift the ground to an argument they can’t win: “Is it fair to apply ideological standards to Alito that were not applied to Ginsburg?” Any high school debater would know that the intelligent move was to refuse the other side’s definition of the question. WTF is the matter with these people? With friends like this….
I’ve been wondering why they’ve been getting away with that all week! How hard can it be for someone to point out the difference during the questioning? (It couldn’t possibly take any more time than it did for Joey to tell us about his daughter going to Penn, could it?)
I didn’t realize that Leahy had never even gotten a private meeting with Alito. What arrogance.
At the DNC put up a Stop Alito donations bat!
Have the guts to let us put our money where we want your mouth to be.