While a lot of liberals, myself included, have appreciated David Frum’s criticisms of the right, and particularly right-wing media, of late, it’s worth being reminded from time to time that Frum is still a conservative, is still an admirer of many aspects of the Bush administration, still has nutty views on foreign policy, and is still out to spread a positive message for the GOP. So I think his latest column is pretty helpful to that end. The premise is that Democrats, not Republicans, have been the “party of no” when it comes to court nominees, not Republicans. Frum starts:
Party of no? When it comes to Supreme Court nominations, the GOP is a flock of baby lambs compared with their opposites on the Democratic side.The past two Democratic presidents have named three justices between them: Sonia Sotomayor, Stephen Breyer and Ruth Bader Ginsburg. All glided painlessly to confirmation.
It’s certainly true that Breyer and Ginsburg were easily confirmed, what with their unanimous votes and all, but with Sotomayor your mileage may vary. Sotomayor was confirmed by a vote of 68-31, which is a wide enough margin, but with only 40 Republicans in the Senate at the time, that means 75% of the Senate Republican Caucus voted against her nomination. And this was after a relentless campaign of racial resentment against her nomination. So I suppose “painlessly” is a bit subjective there. Moving on:
Compare that with the mayhem inflicted on Republican choices. Two of President Nixon’s nominees were rejected by the Senate. Ditto for one of Ronald Reagan’s choices (another withdrew shortly after he was nominated). One of President George H.W. Bush’s choices, Clarence Thomas, was confirmed after a fight that still ranks as perhaps the most vicious in confirmation history.
This is all obviously true, but what’s interesting is that Frum doesn’t really expound on these nominees, and why they ran into trouble. Let’s examine this record of failure, shall we? Nixon’s first nominee to replace Abe Fortas on the court was Clement Haynsworth, who was immediately dogged with a record that was favorably disposed towards segregation and white supremacism. Many have argued that this was unfair, and that Haynsworth was rejected as payback for Republicans forcing Fortas off the Court, but the accusation was there nonetheless, and 55 Senators voted against confirming Haynsworth. Nixon’s next nominee was Harold Carswell, who was also dogged by accusations of racism, although these accusations were backed up by a speech Carswell had given years earlier in which he extolled his committment to…white supremacism. Carswell repudiated the speeches once he was nominated, but was still rejected by the Senate. That Nixon’s first two nominees were dogged by credible accusations of racism seems pretty relevant to this discussion. Moving on to Reagan we get Robert Bork, who was defeated with 58 Senators voting against him, including 6 Republicans, and Douglas Ginsburg, who withdrew his nomination after it was discovered he had lacked to indulge in some pot smoking in his Harvard offices with students. Again, something the seems worth mentioning for contextual purposes. Finally we get Thomas, who faced serious allegations of sexual harrassment, and yet was still confirmed by the Democratic Senate. When you actually look at these rejected nominees, their rejection seems much less remarkable than what Frum lets on. If anything, the remarkable thing to note is that Thomas was confirmed, and that Republicans are still so convinced the allegations against him were nothing but a vicious smear campaign.
But wait, there’s more:
It’s hard to argue that the difference is due to the superior quality of the Democratic choices. Ginsburg’s views were and are at least as controversial as Robert Bork’s. Not only Bork, but two other Republican nominees (Clement Haynsworth and Douglas Ginsburg) could show legal credentials that brightly outshone Sotomayor‘s.
I suppose Frum is technically sufficiently hedged with subjective language here but, pardon me, this is complete bullshit. I suppose it’s in the eye of the beholder and all that, but frankly I’d love to see Frum try to justify his claim that Ginsburg is “at least as controversial” as Bork in her views. It’s just preposterous on the face of it, especially considering that Ginsburg was nominated at a time when the legacies of bona fide liberal justices like Marshall and Blackmun were still fresh. Douglas Ginsburg certainly had impeccable qualifications, but again, he withdrew amidst revelations of drug related impropriety. And that’s to say nothing of Bork’s role in the infamous Saturday Night Massacre. As for a Haynsworth and Sotomayor, I suppose this is subjective, again, but unless Frum has a compelling argument to back this up, I’m afraid I’m going to have to call bullshit again. Haynsworth went to Harvard Law, was first appointed to the federal bench in 1957, when President Eisenhower appointed him to the 4th Circuit, and then nominated for the Supreme Court in 1970. Sotomayor graduated summa cum laude from Princeton, was appointed to the District Court in 1992 and then the 1st Circuit in 1998, before being nominated for the Supreme Court in 2009. So Sotomayor has an academic profile that stacks up against pretty much everyone, and had a longer tenure on the federal bench before being nominated to the Supreme Court. So while I suppose it’s possible Frum has some metric by which Haynsworth is more impressive than Sotomayor, the idea that Sotomayor’s formal credentials are “brightly outshone” by Haynsworth’s is just laughable.
The rest of the column is mostly boilerplate stuff that I just don’t agree with in general, and even if it were less objectionable, the highly misleading, inappropriately vague, and laughable-in-parts opening would still damn the entire column. Thus, while it doesn’t really amount to much in the grand scheme of things, it’s worth keeping in mind that Frum is still a Bushie at heart, and still perfectly dishonest when it suits his ends, no matter how many times he criticizes Rush Limbaugh.