After the Wall Street Journal editorial board took to task Sen. Josh Hawley, R-Mo., earlier this year for asking substantive due process questions of a Republican judicial nominee, George Mason law professor David Bernstein decided to take his turn this week, setting his sights on Sen. Mike Lee, R-Utah.
Both the Wall Street Journal and Bernstein took issue with these senators, whose constitutional role requires them to vet nominees, for asking these nominees serious policy and legal questions, instead of just rubber-stamping them.
In a recent piece in Reason, Bernstein levels a heavy charge at both Hawley and Lee. Their questioning of the nominees, he claims, is “skating awfully close to white Christian identity politics.” (This was his original headline, before ‘white Christian’ was removed.)
After routing Hawley for vetting Neomi Rao (who, by the way, both Hawley and Lee voted to confirm), Bernstein turns most of his attack on Lee for raising legitimate questions about the pro-life positions of Jessie Liu. Liu was considered, though never formally nominated, for the position of associate attorney general. Bernstein, as he discloses, is personal friends with both Rao and Liu.
In his deep dive into identity politics, Bernstein grossly mischaracterizes and disregards Lee’s legitimate concerns about Liu, undersells to the point of dismissing altogether Liu’s role and leadership of a blatantly pro-abortion organization, and bows to the forces of the Left that see everything through a racial and gender bias lens.
Bernstein asserts that Lee only opposed Liu because of her “prior affiliation with the National Association of Women Lawyers (NAWL), which opposed Sam Alito’s 2005 nomination to the Supreme Court based in part on concerns about reproductive rights.” NAWL “is a professional development organization,” he says, and “any statements it makes related to abortion are tangential to its mission.”
Bernstein is glossing over a lot of details here that are actually quite important.
First, Liu was not simply “affiliated” with NAWL. She was in the group’s leadership. Liu was vice president of the group in 2005 and later president-elect (she left the group before officially receiving the promotion). Her name appears on the masthead of letters critical of both Alito as well as Chief Justice John Roberts over their pro-life views. The letter to Alito, in particular, declared him unqualified to serve on the Supreme Court due his dissent in Planned Parenthood v. Casey, which NAWL called “a pointed attack on the abortion right.”
Moreover, as NAWL vice president, Liu served on the board that approved the organization as a signatory to amicus briefs. Amicus briefs are submitted by parties who have a strong interest in one side of the case or the other. One of those amicus briefs filed during Liu’s tenure opposed a New Hampshire law that would have required a 48-hour waiting period for minors seeking an abortion. In the brief, NAWL describes itself as an organization which “promotes reproductive rights.”
After Liu withdrew her name from consideration for associate attorney general, NAWL issued a press statement attacking those who had questioned Liu and whom they blamed for Liu’s withdrawal. Their statement actually underscores the legitimacy of Lee’s concerns about Liu’s leadership of an organization publicly devoted to protecting abortion, not babies.
In its statement, the group noted that it is dedicated to upholding women’s legal rights, “including protecting those rights reflected … in the U.S. Supreme Court.” An article in which the statement appears notes that NAWL has, over the past few decades, taken sides on political issues and “believes in a woman’s right to choose to have an abortion.”
Liu’s involvement with NAWL is far from a mere affiliation. Rather, the actions the organization took while Liu was in a leadership position, which she presumably knew about and was involved in, raise completely reasonable questions as to her beliefs on life and abortion. Her leadership role with a pro-abortion organization compelled March for Life Action to issue a strongly worded opposition letter to her potential nomination.
Senators to whom protecting life is a significant issue of jurisprudence are well within their rights and obligations to ask questions of any nominee, but particularly one whose activities and background raise several red flags, as was the case with Liu.
To malign a senator for performing his constitutional role with claims of racism is absurd on its face. Moreover, it absorbs the Left’s tired identity politics hurled against anyone who opposes them on anything. Case in point, in reporting on the Liu nomination, CNN quoted an anonymous “senior” Department of Justice official, who called Lee a “moron” for opposing “an Asian woman.”
Since when did race and gender become more important to conservatives and libertarians than jurisprudence, qualifications, and a commitment to principles such as the rights of the unborn?
Bernstein holds himself out to be a learned commentator on legal and jurisprudential affairs, but rather than recognizing the substantive concerns that Liu’s background raise, he chooses to denounce Lee with dismissive arrogance and gripes of identity politics.
In doing so, he does a disservice to the country, and more so, to these senators who are diligently carrying out their responsibilities and their pledges to protect the unborn.
The Senate would do well to have more members doing their jobs like Hawley and Lee are doing theirs.
Rachel Bovard (@rachelbovard) is policy director of the Conservative Partnership Institute. Cleta Mitchell is a partner in Foley & Lardner, LLP’s Washington, D.C. office where she practices Political Law, representing Republican officials and candidates and conservative issue organizations and political committees.
