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It’s Not Racism To Ask Judicial Nominees Tough Questions About Their Legal Philosophy


Accusing your political enemies of racism has become so standard in the Democratic playbook that Republicans hardly notice anymore. It’s a ploy that may have once been meant truthfully but now has become as common and meaningless as accusing Republicans of favoring only the rich — a political barb, not meant seriously or even backed up with facts.

One of the disappointing developments of our time has been conservatives copying liberal tactics instead of refuting them. One example of this popped up earlier this week as professor David E. Bernstein blogged at the Volokh Conspiracy that on the nominations of Neomi Rao and Jessie K. Liu, Republicans were “skating awfully close to identity politics on judicial nominations.”

Bernstein goes out of his way to say that he’s not “accusing them of conscious racism,” but he’s not not saying it either. In tarring senators Mike Lee (R–UT) and Josh Hawley (R–MO) with the brush of racism and anti-Semitism, Bernstein misses the chance to have a meaningful conversation about these senators’ opposition to Trump nominees for important offices. Instead, the explosive charge of racism crowds out all other discussion and reduces the conversation to the usual political bomb-throwing.

What Happened With Neomi Rao and Jessie Liu

The first accusation comes after the rough road Rao suffered on her way to confirmation as a judge on the D.C. Circuit Court of Appeals. That court is often called the second-highest court in the land, and has jurisdiction over many important cases. After being burned over the years by Republican nominees who have turned out to be inconsistently conservative, senators are right to scrutinize nominees closely, even those from their own party’s president.

Hawley did just this with Rao, who was appointed to the seat vacated by Brett Kavanaugh upon his elevation to the Supreme Court, and who is often mentioned as a future high court pick herself. Hawley had questions about her commitment to the pro-life cause, and wondered if she was, in fact, sympathetic to the abortion rights movement. He also questioned whether Rao supported the doctrine of “substantive due process,” which was part of the legal reasoning used to derive the pro-abortion holding in Roe v. Wade in 1973. After assurances from Rao and others, Hawley dropped his opposition and the nominee was confirmed.

Similar questions about pro-life credentials dogged Liu when she was nominated to be associate attorney general. Lee’s doubts about Liu’s opinions on abortion stemmed, as far as Bernstein or anyone else can tell, from Liu’s longtime membership in the National Association of Women Lawyers (NAWL), a group that has expressed support for the abortion rights movement in the past.

Did Liu share those views? Abortion rights was just one of many issues the NAWL advocated, but they did so fairly prominently, including their serious public opposition to Justice Samuel Alito’s nomination to the Supreme Court. Liu even served as the group’s vice president.

On the other hand, as Bernstein notes, “Liu personally expressed support for Alito’s nomination to the Supreme Court, signing a Yale Law School alumni letter on his behalf.” So it is possible that Liu’s membership in NAWL does not equate to endorsement of every one of the organization’s policy choices. Ultimately, the controversy, such as it was, cost Liu the job, as she withdrew her nomination.

Bernstein Sees a Suspicious Pattern

Bernstein looks at these two troubled nominations and sees a pattern.

Rao is the daughter of Indian Parsi immigrants, and Liu is the daughter of Chinese immigrants. It seems as though their minority backgrounds may at least subconsciously raise suspicions that they aren’t on ‘the team.’ I suspect such suspicions might have been quelled if they belonged to “appropriate” churches—the Mormon church, a conservative Protestant congregation, a Catholic parish known for being actively pro-life. As it happens, while I can’t speak to either woman’s personal religious beliefs, I understand that their families are members of Jewish congregations.

That is quite a leap, especially the insinuation of anti-Semitism against two people who are not themselves Jewish by birth, although their husbands are. Opposition to two nominees by one senator each is a very small sample size from which to draw such a sweeping conclusion.

It also does not explain Republican senators’ enthusiastic reception of other Asian-American judicial nominees, including Amul Thapar, Jim Ho, and Ken Lee. Nor does Bernstein address the intense opposition to Rao by Democrats, who reserve their harshest fire for “race-” and “gender-traitors,” as they see them. Without any evidence of racism or anti-Semitism from Lee and Hawley, it is truly an inflammatory accusation, no matter how it is couched.

Like all such claims, it sucks the oxygen from an already limited room for the discussion of nominees. There are real issues with the way Rao’s and Liu’s nominations were handled: by promoting the incendiary arguments, Bernstein leaves us with little room to discuss the reasons the senators actually gave for their opposition.

Why Did Lee and Hawley Object?

So let’s talk about them. Lee’s concern with Liu’s nomination was that she might not be solid on abortion. Most conservatives would not dispute that opposition to abortion is an honorable and morally correct position, and a belief shared by many of those who elect Republicans to office. But is it really necessary that every single officeholder in the administration be 100 percent pro-life?

Liu was not nominated to the federal bench, nor running for a seat in the legislature. She was nominated to a high-ranking job in the federal bureaucracy. The distinction is important, because a bureaucrat’s job is not to write laws but to enforce them, in accordance with the policies of the administration.

The debate is a subset of that long-running argument of how the Constitution should be interpreted.

The laws on abortion are what they are, and the Trump administration has proven itself to be strongly pro-life. Liu’s job as the third-ranking member of the Department of Justice would be to enforce those policies, not to write them. Not every bureaucrat, even at the highest level, needs to agree with every point of administration policy in order to be effective at her job. That was an argument worth having during Liu’s nomination fight, but it is pushed aside by more sensational charges of racism.

Rao’s case is also interesting, but not for reasons that commonly make headlines. The debate over substantive due process is one that usually does not leave the realms of law schools and judge’s chambers, but it is nonetheless an important one. The question, essentially, is how the Bill of Rights’s protections are applied against the states.

The Fourteenth Amendment’s authors intended that the “privileges and immunities” protected by their amendment would include those in the Bill of Rights. The Supreme Court saw things differently, and incorporated those rights selectively over the years as a matter of what became known as “substantive due process.”

The debate is a subset of that long-running argument of how the Constitution should be interpreted. Are the rights protected by the Fourteenth Amendment those generally understood at the time of its passage, or those established piecemeal though meandering judicial leaps and jumps of logic through the ages?

The result is often the same, but the method matters. Consider Timbs v. Indiana, a recent Supreme Court case about civil forfeiture. The decision was unanimous in the result, but justices differed on the reasoning behind it, with some ending up on each side of the substantive due process question. Does that matter? Not for Mr. Timbs, but for future cases, and for the predictability of the law, it does.

This, too, is a debate worth having. It is a debate Bernstein and Hawley have already been having between themselves. But, again, with a media that flits from one hot take to the next, no time will be devoted to this important (if esoteric) debate when it is much easier to report on ill-founded accusations of racism, conscious or unconscious. Besides the damage done to innocent men’s reputations by wild accusations, we also must be mindful of the damage done to any chance of honest debate on these important issues.