Is That Legal?

W

Eric - you are Zelig. Two big names on the blogs lately - Alito and Chertoff - are old colleagues of yours, and I suppose there are other public figures you have known from your days in the US attorneys office.

And now that your blog has become established, particularly on matters relating to the judiciary, you have a unique opportunity to comment on such people in a political and strategic context and also as folks you know, and knew before you became a commentator. This is a rare thing on the blogs. You begin the discussion of Alito as a human being you used to see around the office. (this rings true to me since I am a human being you used to see around the office). You are typically fair even to those you don't favor, but most of those can be discussed as abstract figures who signify movements and schools of thought or playes in a strategic game as much as anything else.

Harriet Miers was Counsel to the President when White House lawyers were dreaming up ways to declare torture to be legal, so I did not begin with great sympathy for her. I have thought throughout that she was a terrible choice but I actually felt for her by the end of the whole mess, because she was mocked and vilified in ways that probably were not fair.

I tend to buy the view of Alito as "Scalito" so I oppose him, but he may be a decent guy. And since you are an old friend of mine and you think he is a decent guy, I'm inclined to think he probably is a decent guy. That doesn't matter, or shouldn't, in his confirmation process. But perhaps it does matter in the public discourse, where we so often feel free to call our opponents scoundrels and far worse. In the case of people like Dick Cheney or Karl Rove, this might be appropriate, but only because of the ample evidence on the record.

But I don't know a thing about Alito beyond his public life and what you have said about him here. So what will you do with your unique perspective?

I expect Alito is somebody that you would support to the extent that he is well-qualified and within the prerogatives of a duly elected (this time) conservative president, but that you would wish for a far more moderate nominee.

So maybe you are in a position to discuss his merits, offer some cool criticism on that score and then get a conversation going about how we talk about SCOTUS nominees and others in politically charged positions.

My usual impulse as a Democrat inclined to progressive causes, is to say that this is a trap, that the right gives no quarter and would "swift boat"* Mother Teresa if it would serve the cause, and the left should at least try to play that kind of hard ball in bahalf of our cause. But I am taking the occasion of you Alito posts to resist that impulse and throw this out there. What do you think?

* Hitchens actually did.

But did he wash his hands religiously?

My usual impulse as a Democrat inclined to progressive causes, is to say that this is a trap, that the right gives no quarter and would "swift boat" Mother Teresa if it would serve the cause, and the left should at least try to play that kind of hard ball in bahalf of our cause. But I am taking the occasion of you Alito posts to resist that impulse and throw this out there. What do you think?

I don't know what Prof. Mueller thinks, and I know he shares your political sensibiities, but if you think that liberals and Democrats don't do those things and that people with whom you disagree are scoundrels, then why are you bothering to get involved in the discourse at all? You will not change your mind; you will not be persuaded. Save yourself the effort.

Harriet Miers was counsel to the President when White House Lawyers were dreaming up ways to declare torture to be legal...

Actually, no, she wasn't. She was counsel to Andy Card on the Domestic Policy Counsel, pushing the WH to direct the SG's office to issue a "compromise" brief (instead of the Ed/DOJ preferred brief, against Michigan); she also pushed Ed to water down the Title IX Commission report. The top reason for conservative horror at Miers was that she wasn't qualified (a justice who just rules, but doesn't convince, doesn't help the movement in the long run); but high on the list was that it was not certain that she'd even be a reliable conservative vote, and there were in fact indicators that she'd go in the opposite direction, such as the naked quotas she used in hiring practices for the Tx state bar.

I don't know what Prof. Mueller [sic] thinks, and I know he shares your political sensibiities, but if you think that liberals and Democrats don't do those things and that people with whom you disagree are scoundrels, then why are you bothering to get involved in the discourse at all? You will not change your mind; you will not be persuaded. Save yourself the effort.

As any fair reading of my post (above) shows, I did not say those thing. I thought I was pretty clear in my post, but I will spell it out more explicitly: It is not a good thing for those on the left to paint somebody like Alito as a scoundrel just because we think he is wrong on the issues, and we would prefer that he not be on the court. We should only call scoundrels those who have behaved as scoundrels; I believe that Cheney, Rove and Libby (and their boss)have done so, not least by their deceptions in selling the war, and that we who honestly regard them as scoundrels are perfectly fair in describing them that way. I was inviting Professor Muller to use this forum to encourage thoughtful discussion of the way we talk about our ideological oppponents. The spirit of the thing was that we should respect principled conservatives and not be shy about going after the unprincipled, (regardless of ideology, I will add.) I suspect that you understood me well enough, but preferred to set up that last out-of-context quote as a straw man of "liberal intolerance" to knock down. And of course Dems/liberals play hard ball too, but they certainly are less comfortable and less effective doing so, because they get trashed for it by their allies as well as their targets. Dems who resist tough language in the name of fairness are right to do so; when they conflate gentleness and fairness at the expense of honest criticism, they are wrong and play into the hands of their opponents. Even the harshest description is fair if it is accurate.

Anyway John, even though I think you treated me unfairly and mischaracterized my remarks, and even though you are a person with whom I disagree, I am not prepared to say that you are a scoundrel. It wouldn't be fair.

BTW - To Al Maviva - thanks, I stand corrected.