The National Review has demanded that I retract or apologize for the following paragraph in my post on Huffington:
“Liu is not the first nominee to go through a barrage of unfair attacks. Louis Brandeis, the first Jewish American to join the Supreme Court, had a nasty Senate confirmation hearing in 1916. The Clarence Thomas confirmation hearing was another debacle; Senators caricatured and attacked the nominee instead of discussing his ideas about judging. President George W. Bush's nominee to the D.C. Circuit, Miguel Estrada, was attacked by critics who had preconceived notions about how a Hispanic jurist should think about the law. He eventually withdrew.”
For Liu, I simply say the attacks are unfair. Liu also is Asian American. I do not say the attacks on Liu that I critique are because Liu is Asian American. Nowhere in this paragraph do I mention the attacks from Ed Whelan or anyone else at the National Review. I am not accusing them of bias.
A lot of the attacks on Liu are about topics of race, but this is largely because Liu has written about race in addition to many other topics. The false accusation that Liu endorses reparations for slavery has been given enormous play in the press, including the National Review. I do question the rationale for this because (i) Liu never did endorse reparations and (ii) the reparations issue – if it is an issue anywhere except in the imagination – is very unlikely to come before the federal courts. It is also an issue likely to inflame those segments of our population where bias still does exist.
My point is that all nominees should be treated fairly. I am concerned that too many minority nominees have a rough go of it in confirmation hearings, and particularly in the press. During Republican administrations when we want our own nominees confirmed this phenomenon is something we complain about – including in the pages of the National Review. When Democratic Administrations want their nominees confirmed, are we really supposed to say that this phenomenon does not exist and attack anybody who says it might? History tells us otherwise.
For Brandeis, there is abundant evidence that bias against Jews did play a part. The National Review played no part in that and has no grounds to be offended.
As for Clarence Thomas, the person most likely to be offended by what I have said is the Vice President of the United States, who presided over these hearings as Chairman of the Senate Judiciary Committee. I do not believe that he or any other member of the Committee was biased, but they did allow the hearings to take a turn that was hurtful for many African Americans. One can debate whether that turn of events had to transpire anyway, but it was hurtful nonetheless. We remember Judge Bork’s hearings for discussion of constitutional law; we remember Justice Thomas’s hearings for something else. Justice Thomas himself found the entire episode hurtful, and if the National Review wants to tell him that his hearing was race neutral, they should tell him that.
The National Review itself discussed the role of ethnicity in the Estrada hearing:
“It is worth remembering how the Democrats treated Estrada, whom they not only filibustered, but treated demonstrably differently than other non-minority nominees, and whom they viciously attacked as being insufficiently Hispanic. I wrote about the shameful treatment at the time here, explaining how the disparate treatment to which Democrats subjected Estrada compared to then-Judge Roberts would violate anti-discrimination law if Title VII applied to confirmations, and Byron York wrote about how congressional Democrats went so far as to say that he was not a “true” Hispanic.”
Robert Alt, Hatch and Graham Remember Miguel Estrada, July 13, 2009
The National Review thus accused Democratic Senators of bias that violates civil rights laws. At the time, the National Review and many other conservative publications brought the bias issue up over and over again.
My own view is more nuanced. I did not say, and I do not believe, that Democratic Members of the Senate were themselves biased. I do believe that some segments of our population and of the press were uncomfortable with a conservative – perhaps very conservative – nominee who happened to be Hispanic. If the National Review wants everyone who brings up the possibility of bias in public debate on judicial nominations to retract and apologize, perhaps now is a good time to start. And I would start with those who selectively overstate the case instead of raise it as a problem we should be aware of.