Bet you didn’t know that the law was all about secret handshakes and treehouses.
Little new evidence is needed to prove that the political left and right use entirely different language and frames of reference in their understanding of court- and law-related issues, but … the nomination of former federal District Judge Michael Mukasey has brought those differences into utterly stark relief.
In particular, many on the left seem constitutionally unable (forgive the pun) to allow for the slightest possibility that conservative legal scholars and practitioners can consider the issues with anyintellectual consistency or good faith.
It is not enough that the conservatives disagree with them; instead, the conservatives must be denigrated, their motives and/or intellect questioned, their characters smeared. To the left, conservative jurisprudence is either a mystery, a farce or an outright lie.
Consider the Mukasey nomination: Even when the right does behave in the way the left prescribes — by putting credentials ahead of ideological purity, for instance — the left accuses it of doing otherwise. Meanwhile, the left’s own hubris masks flagrant inconsistencies of its own.
At the risk of overgeneralizing from one specific case study: An online column last week by Slate’s resident lefty legal analyst, Dahlia Lithwick, exemplifies the problem. Lithwick posits that (mild) conservative discomfort about Mukasey “reveal[s] a good deal … about what’s gone wrong with the legal system on [conservatives’] watch.”
But Lithwick’s description of the right is embarrassingly cartoonish. Lithwick seems offended that conservatives were worried by earlier kind words for Mukasey from liberal Sen. Chuck Schumer, D-N.Y.
She is contemptuous of conservatives who worry about Mukasey’s beliefs on abortion and other “life” issues. And she accuses conservative legal activists of putting clubbiness ahead of competence.
Without presenting any evidence, Lithwick writes that “one of the things that derailed Harriet Miers’ chances at a Supreme Court seat, and arguably Alberto Gonzales’ shot as well, was that sense that they were not card-carrying members of the correct legal organizations, and hadn’t come up through the proper ranks. …
“This conservative insistence that the AG needs to know all 17 twists in the Federalist Society’s secret handshake reveals the same toxic thinking that has so damaged the Justice Department in the first place.”
She then laments that this allegedinsider-itis has replaced “competence” as the key to advancement in the conservative legal world. This is like building your own piñata and then criticizing its stuffing. The flaws Lithwick finds in conservatives as she describes them are flaws of her own creation.
If Lithwick reviews conservative legal Web sites during the Miers fiasco, she wouldn’t find even a large minority of comments questioning Miers’ affiliations. Instead, the questions — offered in the face of Miers’ strong affiliation with a then-still-popular (on the right at least) President Bush — specifically concerned Miers’ competence, legal experience and familiarity with constitutional law.
In short, conservative concern about competence did not take a back seat to her affiliations; they trumped those affiliations. It wasn’t the secret handshake Miers lacked; she lacked a public record.
But back to Mukasey’s nomination. … Is it any wonder that some on the right would do a double-take upon hearing that Mukasey has been praised by Schumer, the hyper-partisan who has abused almost every conservative judicial nominee for the past six-plus years?
If the tables were turned and a lesser-known Democratic judge were nominated for attorney general, and the first thing the lefties heard was that former House Speaker Newt Gingrich had praised the judge, wouldn’t the lefties be worried?
Absurdly, Lithwick glosses over this fact: The vast bulk of the conservative legal establishment, after a little due diligence, actually welcomed the Mukasey nomination even though Mukasey does not belong to its clubs, know its “handshakes,” or have a clear “pro-life” record.
In fact, almost the entire political right has fallen in line behind Mukasey after its leaders examined his qualifications and intellect. If Lithwick’s characterizations of conservatives were true, the right would be up in arms against Mukasey in the same way it fought against the Miers nomination.
Instead, numerous essays in conservative outlets last week adjudged Mukasey acceptable not because he reached particular results, but because of the record of his careful attention to procedural detail in complicated cases.
But the left cannot bear to credit conservatives with such principled decision-making. Hence all the talk of secret conservative handshakes and treehouses, even when the record of the right’s reaction to Mukasey shows nothing but open, and well-grounded, conservative respect for the ideals of the law.
Examiner columnist Quin Hillyer is a senior editor of The American Spectator. He can be reached at [email protected].
