NR's Bench Memos: Not Serious

The National Review's descent from a serious and intellectually-honest (albeit partisan) magazine into a silly partisan hack rag was perhaps best exposed by Ramesh Ponnuru's hit piece on Professor Tribe, and then his childish name-calling of Tom Goldstein for daring to question his analysis (name calling which was criticized by many serious conservatives). So perhaps it is no surprise that National Review's entry into commentary on judicial nominations with its Bench Memos blog is beyond dishonest.

For example, take a look at this post by Edward Whelan on Justice Ruth Bader Ginsburg:

First, no conceivable nominee will have the record of extremism that nominee [Ruth Bader] Ginsburg had, but will instead surely display a much more sound understanding of the role of judging in a constitutional republic. Second, Ginsburg was altering the previous balance of the Court by replacing Justice Byron White, an opponent of much of the Court’s liberal activism (including Roe).

Record of Extremism!! Recall that Justice Ginsburg was recommended to President Clinton by none other than Orin Hatch, then ranking-minority member of the Senate Judiciary Committee. I challenge the National Review to find a serious legal scholar (eg not R. Ponnuru) who would characterize Justice Ginsburg's jurisprudence on the DC Circuit (or now on the Supreme Court) as "extreme." Compared to true judicial liberals like the late Justices Brennan and Marshall, or Ninth Circuit Judge Reinhardt, Ginsburg is conservative. She has not hesitated to join summary reversals of vacaturs of death sentences by the Ninth Circuit (this sort of procedural speak may be above the author of the post I criticize), and she has routinely affirmed death sentences.

Even on woman's issues, Justice Ginsburg has not been so far to the left in her tenure on the Supreme Court. In US v. Virginia, Justice Ginsburg reaffirmed that intermediate-scrutiny for gender-based classifications was the proper level of analysis under the Equal Protection Clause of the 14th Amendment (I know, I know, this is probably all over Edward Whelan's head). This despite the Clinton Administration's urging that the Court adopt strict scrutiny (which was the standard urged by liberals in the 70's and 80's, and endorsed by Justices Brennan and Marshall).

The colorable point that Mr. Whelan has is that Ginsburg's nomination altered the balance of the Court in a greater way than will the Chief Justice's replacement. This is true to a degree. But only to a degree. Justice White (appointed by JFK) was indeed judicially conservative on many issues -- most notably in his opposition to Roe v. Wade, he and Rehnquist were the only dissenters from the Court's opinion in Roe. But in other areas, Justice White's jurisprudence was similar to Justice Ginsburg's -- he did not believe that affirmative action programs should be reviewed for strict scrutiny, he was a supporter of civil rights laws, etc.

In short, in their new role as mouthpiece for the Republican party and by trying to drum up support amongst the Republican base against "activist" judges (coincidentally with Jewish names which surely will play well with his audience), the National Review must simply depart from any modicum of intellectual honesty. It's sad as those of us who truly understand jurisprudence have to read this cr--.