So, it’s not like I care what Marc Thiessen has to say about anything. Let’s be clear about that. When you become known primarily as a torture apologist, well, that’s pretty much that, right? Still, I found this perplexing in his Washington Post column called Why are Republicans so awful at picking Supreme Court justices?
Another factor is that liberal Supreme Court nominees can tell you precisely how they stand on key issues and still get confirmed. In her 1993 confirmation hearings, Ginsburg declared the right to abortion “central to a woman’s life, to her dignity” and was confirmed 96 to 3. Breyer declared abortion a “basic right” and was confirmed 87-9. Imagine if a conservative nominee said the opposite? Their confirmation battle would be a nuclear war.
Liberal nominees can simply affirm liberal positions, while conservatives must speak cryptically in terms of their judicial philosophy.
In other words, if a nominee were to state in a confirmation hearing that he utterly rejects the state of the law as it now stands and vows to overturn decided precedent, specifically to take away reproductive choices that women now take for granted, overturning a decision with widespread popular support, then there would be a nuclear war. Which I think is a terrible metaphor, by the way. The nominee would just lose the vote; hardly anyone would have to die. Still, yeah, if a nominee said that sort of thing, the vote would go against them. Whereas, evidently, Mr. Thiessen thinks that a nominee should be able to spout unpopular views that conflict with settled law and have that play no part whatsoever in the confirmation voting.
Really, can I say? Liberal nominees, and I am going to use Mr. Thiessen’s term even though I have written before about the contemporary view of Ruth Bader Ginsberg as a moderate, do get to clearly talk about how they agree with popular decisions and still be confirmed. Shocker! Conservative nominees do not get to clearly talk about how they would prefer to take us back to a Gilded Age view of federal power, dismantling popular and longstanding federal programs, and still be confirmed. Shocker! I am baffled by the difference between how these two types of people are treated by the Senate.
It’s not entirely about the left and right tribes, by the way. I’m not sure that a liberal nominee could, at this point, be confirmed after testifying that he would like to overturn Gregg v Georgia, agreeing with Justices Brennan and Marshall that the death penalty is cruel and unusual punishment. The Senate doesn’t tend to get all excited about confirming people who will overturn popular decisions on either side.
But here’s the question, and perhaps it’s worth thinking about. Does Mr. Thiessen know perfectly well the difference between reaffirming popular decisions and overturning them? Does he mistakenly think that Roe v Wade is unpopular? Is he knowingly using a spurious argument because he thinks this sort of thing is persuasive? If that’s it, who does he think would be persuaded by this sort of thing? Or is this kind of thing just a smokescreen for branding Justices Ginsberg and Breyer as liberal, and by extension branding other Justices as liberal as well, hinting that this is out of the mainstream, despite their actually mainstream views?
I guess what I’m saying is that I am baffled by the idea that there could be any point to these paragraphs whatsoever. I mean. The straightforward interpretation, the other-audience interpretation, the whole thing. It seems to me that anyone reading this, a Conservative or a Liberal, anyone who might possibly be reading an op-ed sort of column in the first place, would read this and think what a maroon!
Maybe I’m overthinking this. Maybe he’s really this dim, after all. I mean, he did write speeches for Our Previous President.
Tolerabimus quod tolerare debemus,