Republican Senators are Skating Awfully Close to Identity Politics on Judicial Nominations

|The Volokh Conspiracy |

As readers may recall, Judge Neomi Rao's nomination to the D.C. Circuit Court of Appeals hit a snag when Senator Josh Hawley questioned her commitment to opposing "substantive due process" and whether her personal political views leaned toward being pro-choice. After significant pressure from conservative activists, the Trump administration, and, according to reports, personal reassurances from Rao's former boss Justice Clarence Thomas regarding her conservative bona fides, Hawley relented and Rao was confirmed.

Jessie Liu, nominated to be associate attorney general, wasn't so lucky. Opposition from Utah Senator Mike Lee killed her nomination, she withdrew on Friday.

According to his spokesman, Lee opposed Jessie Liu's nomination to be associate attorney general because of "questions about her record on life issues." The only basis provided for concluding that Liu might be pro-choice is Liu's 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, whose slogan is "Empowering Women in the Legal Profession Since 1899." Any statements it makes related to abortion are tangential to its mission. Liu said that she played no role in the decision to oppose Alito's nomination, and no one contradicted her assertion.

Meanwhile, Liu personally expressed support for Alito's nomination to the Supreme Court, signing a Yale Law School alumni letter on his behalf. And after Alito joined the Supreme Court, she helped organize a Yale Law School alumni dinner in his honor (here they are together). Under normal circumstances, one would think that would have been enough to quell any doubts about Liu based on her membership in an organization that opposed Alito. After all, Lee himself was an attorney at Sidley & Austin in Washington, D.C., from 1999 to 2002. At that time, Sidley was a significant donor to NAWL. Obviously, he knows from experience that one's professional affiliations don't necessarily indicate one's personal views.

But these were apparently not normal circumstances. There have been many nominees to high-level Justice Department positions with no public record on abortion who have been approved without any concerns being raised. In Rao's case, people said that she was being subject to particularly high scrutiny because she was in a position to be a short-lister for a Supreme Court nomination. And yet, I don't recall similar concerns being raised about other Trump nominees who are viable candidates for the Supreme Court, such as the Sixth Circuit's Joan Larsen, who to my knowledge has never said anything publicly about abortion. In Liu's case, it's pretty hard to think of a good reason why her pro-life bona fides should be scrutinized more closely than other nominees'.

Unfortunately, in both situations it's all-too-easy to come up with bad reasons. Rao is the daughter of Indian Parsi immigrants, and Liu is the daughter of Chinese immigrants. It seems as though their minority background may at least subconsciously raise suspicions that they aren't on "the team." I suspect that 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.

Please note that I'm not accusing the Senators in question of antisemitism. Nor am I accusing them of conscious racism. But I do suspect that in certain conservative circles, people have an image in their head of what a "trustworthy" conservative looks like, and that person is white, likely male, and a religious Christian. Those who don't fit that mold are more likely to have their conservative credentials questioned.

This is both unfair and a disaster for the Republican Party. Imagine you are a conservative-leaning Indian-American Hindu, or Thai-American Buddhist, or Iranian-American Muslim, or African American agnostic. You are attending Yale (Liu's alma mater) or Chicago (Rao's) law school and you have nascent but indeterminate political ambitions. You are trying to decide whether to "come out" as a Federalist-type, or keep your head down and avoid politics. You know if you do the former, you will be the subject of special derision and social sanction from your liberal classmates, who will openly question how a person of color can hang out in Fed Soc circles.

Given that dynamic, Republicans should be especially welcoming to such individuals. Instead, the Rao and Liu situations suggest the opposite. It comes awfully close to looking like implicit white Christian identity politics, and it's a bad look for the GOP.

CONFLICT OF INTEREST WATCH: Liu's husband and Rao are friends and former colleagues of mine.

UPDATE: Just noticed an ambiguity in the title of this post, so I changed it. I originally alluded to "White Christian Identitiy Politics." But that I did not mean White "Christian Identity" Politics, as in the politics of the white supremacist Christian Identity movement, but "White, Christian" Identity Politics, as in "we trust and prefer people in high office who share a background we identify with." And for what it's worth, I've heard plenty of conservatives favoring this or that potential SCOTUS nominee on the grounds that he or she would be "trustworthy" because of their "background," especially religiosity. To my mind, a well-thought-out judicial philosophy and the willingness to issue unpopular rulings easily trumps any of that, unless one wants to get into the sort of "wise Latina" territory conservatives usually m

FURTHER UPDATE: Some are claiming that I accused the senators of being white supremacists. Perhaps that was based on my poorly-worded and now-edited original title, and I apologize if such inference was taken. If not that then, (a) no, I didn't; (b) no, I'm not now; and (c) what I am saying is that when Republican Senators and their allies on the issue successively question the conservative bona fides of two Trump nominees who don't fit the stereoptypical mold of a "conservative" while other "mold-fitting" nominees for similar positions haven't faced similar scrutiny, it raises the question of whether the lack of mold-fit played a role in raising doubts about their conservatism. Suggesting possible cognitive bias in evaluating nominees is a far cry from suggesting white supremacism.

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161 responses to “Republican Senators are Skating Awfully Close to Identity Politics on Judicial Nominations

  1. If they’re questioning Asian-American nominees more than white ones, the answer is to question the white nominees more, not question the Asian ones less.

    1. ^bingo.

  2. Wait. There are Jews in India and China? Talk about burying the lede!

    (J/K. Of course I knew there are Jews in India and China. Otherwise, how could we control the weather?)

    1. Could you ask your buddies not to have so much rain in the daytime?

      1. What’s in it for us?

        1. An Illuminati calendar, with key dates for the end of the world.

          1. So let’s say you’re planning an ocean cruise, before you go, check the Illuminati calendar to make sure Cthulhu isn’t rising from the depths during that time – if he is, call your friends and ask if they want to go bowling instead.

            1. ‘IT’

              Great Cthulhu’s pronouns are ‘it’ and ‘ohmymotheffucking godwhatisthatthing it’s….’

              Please be respectful of It’s genderdimensional choices.

              1. Do you want me to get involved in litigation with Stephen King’s IT?

    2. That is what raised my alarm bells. Visible minority, ok. Didn’t join any overt Conservative or Libertarian professional groups, disturbing but still possibly ok. But they they converted to Judaism on top of all that? Sorry, but that is just too many red flags. And it isn’t like minorities or non Christians are the only ones who face this sort of scrutiny. Amy Barrett is going to face tremendous opposition from Conservatives who believe in border security based entirely on aspects of her personal life.

      1. Do you know how many conservative Jews there are? A lot. There are more liberal Jews, yes, but elimination based on religion- not good.

    3. Customers to waiter: Do you have Chinese Jews? Waiter: Don’t know. Let me ask in kitchen. Waiter returns, and says: No, we have orange juice, tomato juice, but no Chinese juice.

  3. “But I do suspect that in certain conservative circles, people have an image in their head of what a “trustworthy” conservative looks like, and that person is white, likely male, and a religious Christian”
    What circles? Your falling for stereotypes.
    Evangelicals fetishized “exotic” Christian leaders like Sadu Sundar Singh and Watchman Nee, long before the progressive and woke did. Contrary to portrayals in the press, Ravi Zacharias is one of the most influential evangelicals, not guys like Joel Olsteen who is mock popular because he buys himself airtime.
    And try to find a Catholic Church nowadays where the priest isn’t Filipino, Nigerian or Mexican.

    1. Got that right, we’ve got two of the three in my parish, Filipino and… South American, not Mexican. The Nigerian just drops by for visits when one of the local priests is on retreat.

    2. And try to find a Catholic Church nowadays where the priest isn’t Filipino, Nigerian or Mexican.

      That’s more to do with the Catholic Church’s marred reputation in English-speaking countries and the difficulty of getting men in those countries to willingly enter such an organization.

      Simply put, the Church has a better reputation outside of America, and so a lot of their new priests are coming from there. Their pool of would-be priests is shrinking so much they don’t really have the luxury of enforcing racial preferences anymore.

      1. EscherEnigma: ” … the Catholic Church’s marred reputation in English-speaking countries and the difficulty of getting men in those countries to willingly enter such an organization.”

        I assume that you are talking about the sex scandals. The falloff in vocations to the priesthood began in the 60s and 70s, decades before publicity about the sex scandals.

        EscherEnigma: ” Their pool of would-be priests is shrinking so much they don’t really have the luxury of enforcing racial preferences anymore.”

        The Catholic Church has never had “racial preferences” for priests. There have always been non-white priests, bishops, cardinals, etc. Most of the early fathers of the Church were North African. There were Christian churches in India before there were churches in France or Spain. Many, many thousands of Christians died to bring Christianity to non-white people.

        About the only place and time that the Catholic Church has enforced racial discrimination was in the
        American South from about 1760 to 1960, when it operated segregated schools.

    3. I know that many are too stupid to realize this (the author obviously is), but throughout the world you’d be hard pressed to make the argument that Christian= White (especially since Africa is the fastest growing continent of Christian converts) and Muslim= Arab (pretty sure the Persian Iranians and the South East Asians would disagree).

      As always, identity politics is informed by ignorance and this article is a good example of that

  4. Shorter: “I have no proof, but I’m going to libel folks as racists anyway.”

    1. Exactly. This is mighty weak tea.

    2. Not quite. He has not proof and lacks the courage to slander them. So he will slander them without actually making the accusation just implying it. This piece is a new low for Volkh. Just cowardice and elitist bigotry.

      1. You’re doing it wrong, John. Here’s how you do it:

        “Despite all the evidence, I am not accusing David Bernstein of slander. But it is not a good look for him to look so much like he is slandering. Which I am not accusing him of doing, mind you.”

        1. I forgot my copy of “Professor Bernstein’s Style Guide for Slander and Cowardice”. Thanks for looking it up for me.

    3. ^+10.

  5. I don’t know that I buy the identity hypothesis in an era when everyone not Trump is under suspicion of their conservative bona fides.
    But calling out conservatives for once does bespeak some principal above partisanship which I find gratifying.

    1. Did you call out Democrat anti-Semites?

      1. ? I mean, I acknoledge they are there, and a growing problem.

        And I know that while I didn’t see it with Rep. Omar, I acknoledge that every single one of my Jewish friends both to my right and my left winced at what she said, multiple times.

        Though I continue disagree with the thesis that if you don’t condemn the palestinians you can’t condemn Israel without being an antesmite.

        1. The problem is not her criticizing Isreal. The problem is her claiming Jews have hypnotized the world and control US policy with their money. That is pur antisemitism. But it is also the future of the Democratic Party. Muslims are now more important than Jews and everyone knows Jews will always vote Democratic no matter what. So, it is a simple political calculus.

          1. You’ve misstated what she said. And the Democratic Party is robustly pro-Israel, and predictably came out to condemn her harmless (and factually accurate) statements.

            1. I didn’t misstate at all. She said in so many words “the Jews have hypnotized the world.” in 2012. Then she said this

              I want to talk about the political influence in this country that says it is OK for people to push for allegiance to a foreign country. I want to ask why is it OK for me to talk about the influence of the NRA (National Rifle Association), of fossil fuel industries or Big Pharma, and not talk about a powerful lobbying group that is influencing policies?”

              http://www.npr.org/2019/03/07/…..i-semitism

              That is calling Jews fifth columnists. IT is antisemitic.

              1. She said in so many words “the Jews have hypnotized the world.”

                Get an education. Start with standard English, focusing on quotation marks, you bigoted right-wing rube.

                And please stick with the ‘Democrats are the real racists’ line. Every time a stale-thinking, intolerant Republican uses that line, a young, educated, tolerant, decent American gets her voting wings (and a lifelong voting pattern).

                1. Stop lying, you miserable ignorent toothless moron.

                  http://www.nytimes.com/2019/02…..itism.html

                  At some point being profoundly stupid has to get old doesn’t it?

                2. You are a hateful, ignorant bigot Rev. Every day you continue to live, the world is a dumber place for you having been in it.

              2. No, it isn’t. At least in what you quoted, John, she seems to be criticizing AIPAC, not all Jews. Of course, if AIPAC is in fact doing something which would be an anti-semitic trope if you said all Jews do it, then it complicates criticizing AIPAC. Grown-ups may have to learn to live with it though. The result can’t be that criticism of what AIPAC is doing?including a criticism of dual loyalty, if that’s what the critic thinks?is right out.

                1. Calling AIPAC an agent of a foreign power is a complete slander. It is calling everyone who is a member of it a fifth collumn. The fact that that just includes a large majority of Jews and not all of them doesn’t make the statement any less antisemetic especially considering the history of calling Jews traitors and fifth collunists.

                  Imagine if someone said that the Hispanic Caucus was an agent of Mexico. Sure, not every Hispanic is a member or supports the Hispanic Caucus, but that fact doesn’t make the charge any less racist. The same is true here.

                  Anti- Semitism is the future of the Demcoratic party. If pretending that it really isn’t happening is how you plan to rationalize voting Democrat, I wish you good luck with that.

              3. My Jewish friends are split on the issue of antisemitism, but all of them found it uncomforably close; I leave it to them to weigh when invoking the tropes crosses the line; I don’t have the lived experience they do.

                But that quote takes quite a lot of work to turn it into calling Jews fifth collumnists. Saying AIPAC puts Israel first is accurate; that’s their freaking job. Just like the NRA’s job is to put gun rights first, etc. etc.

                1. But that quote takes quite a lot of work to turn it into calling Jews fifth collumnists. Saying AIPAC puts Israel first is accurate; that’s their freaking job.

                  I don’t think AIPAC puts Isreal over the US. I think they believe it is in the US’s interests to support Isreal. That is an important distinction and one that Omar doesn’t make. She accuses them of not caring about the US and only caring about Isreal.

                  The fact that not all Jews support AIPAC is really immaterial and makes the statement no less antiSemitic. But, this is where the Democratic party is going. I can’t really blame you guys for doing your best to rationalize it and be as comfortable with it as possible.

              4. AIPAC isn’t a powerful lobbying group that influences policies?

                1. Sure it is. But its political power, whatever it is, says nothing about whether it puts Isreal’s interests ahead of the US’s.

                  1. I would hope they do. Lobbying groups are not paid to push the interests of the nation that they are lobbying; that’d be a conflict of interest.

                2. I think the problem has more to do with the idea that its power, (Like that of the NRA) doesn’t come from having a lot of people in agreement with it, but just from buying off politicians.

                  1. The problem has to do with being too cynical about Washington’s lobbyist-driven culture?

                    Because I’m generally a polyanna but that ain’t wrong. Dunno if it should, or if it even needs to as much as it does, but in D.C. money talks.

              5. Yes, you misstated it. That’s why you have to state that she said “in so many words” as opposed to “she said [whatever]”.

                She’s talking about AIPAC. People talk about AIPAC’s political influence all the time. Including people within AIPAC, which wouldn’t exist but for this political influence. It sells itself to members and the public on that influence. There is no credible interpretation of what she said turning “a powerful lobbying group” into “the Jews”.

            2. What John said. Oh yeah, and don’t be misled by the Obama ordered US abstention from that UN resolution condemning Israeli settlements, the Democrats are robustly pro-Israel.

              1. Democrats, like most Americans (especially the educated, accomplished ones), dislike right-wing belligerence and therefore object to much of Netanyahu-style conduct and policies in Israel.

                Just as superstition does not improve bigotry or backwardness, Jewishness does not improve immoral right-wing belligerence.

                1. Democrats, like most Americans (especially the educated, accomplished ones),

                  Says an 8th grade dropout who lives in his mother’s basement.

                2. Thanks Rev. Which Democrats should I support? The Dems who imposed slavery? The Dems who imposed Jim Crow? The Dems who created the Klan? Or, the new batch of moronic Democrat anti-Semites and socialists?

                  1. The Democrats who didn’t switch to Republican when the southern bigots migrated, making the Republican Party the choice of intolerant, superstitious, stale-thinking whites.

                    1. Zingo!

                    2. Gotcha Rev., so then that would be the Democrat anti-Semites? Sorry can’t support that myself but there does seem to be a small interest in the vileness of the Democrat party so who knows, you guys might do well in some areas, at least where you can manage to harvest enough votes to win.

                    3. “…so then that would be the Democrat anti-Semites?”

                      If you are looking for Jewish members of Congress to support, there are currently 27 representatives, 2 of whom are Republicans. There are 8 Senators, but unfortunately for you none of them are Republicans.

  6. I don’t know that I buy the identity hypothesis in an era when everyone not Trump is under continual suspicion of their conservative bona fides.

    But calling out conservatives for once does bespeak some principal above partisanship which I find gratifying.

  7. Given the survival of Roe v Wade after so many Republican nominated Justices, my default state is to suspect that any Republican nominee isn’t on the team, until proven otherwise.

    Anyway, this seems like a pretty thin basis for leveling such accusations.

    1. Trump judicial nominees have been remarkably white, male, and Christian. The outliers tend to get shot down by “friendly” fire. Seems a reasonable subject for commentary.

      Carry on, clingers. Until you are replaced, that is.

      1. When you look at the demographics of the portion of the legal community who are old enough to be reasonable to put on the bench, and especially the Supreme court, I would say that the bench is suspiciously non-white and non-male, the Supreme court conspicuously so. it’s pretty clear that some deliberate sexual and racial discrimination was at work in producing a bench that isn’t representative of the pool of qualified individuals.

        1. Thank you for the tired, disaffected, whining white perspective.

          1. You’re welcome.

      2. I’m more than sure that, like most other things, you have no clue as to the race, gender or religious affiliations of the President’s nominees. Just curious though, can one be unremarkably white? What shade would that be, eggshell, cream colored?

  8. What do you mean about it being a “disaster”?

    Do you mean ethically, or practically?

    The GOP has ridden the Southern Strategy to great success, pushing Democrats out of power except in a few strongholds. Practically, identity politics has been a historic strategic win.

    If you call something a disaster because it taints the souls of the people doing it, I respect that highly.

    1. What fantastical, self-congratulatory crap.

      When the South actually was full of bigots and racism, the Dems were happy to take their votes.

      When the whole country — including the South — repudiated racism and held equal rights as the standard, the whole country came into play for both parties.

      When the Dems went far left on social issues and foreign policy — “amnesty, acid and abortion” in the words of Tom Eagleton — the South began to come into play for the GOP, 20 (!) years after all the important civil rights bills were passed.

      Having repudiated the values of their country, the Dems like to congratulate themselves by claiming that rejection of their radical leftist views is really racism in disguise without a shred of evidence.

      1. When the whole country — including the South — repudiated racism

        This ‘there is no more racism, especially among us’ argument seems silly, but I encourage Republicans to continue to use it because I can foresee demographic change in America.

        Carry on, clingers. Until your betters replace you, anyway.

        1. This is why the Onion is no longer funny. You can’t satirize this kind of stupid. You can only hope to contain it.

          1. The Rev is a wonderful example of Poe’s Law in action. He is so over the top that you cannot tell the difference between him and outright satire of the progressive position. That’s why he attracts so many people who post under his name… and no one can really tell who is whom even with the most extreme posts.

            Must be sad to be him.

  9. This is an astonishingly bigoted, narrow-minded, hatemongering post. It is devoid of evidence and reason, and is not befitting of this otherwise outstanding publication.

    1. You might be slightly happier at Stormfront.

  10. If this is how Prof. Bernstein feels about a tenuous relationship between opposition and religious affiliation, I’m curious how he feels about Democrats explicitly opposing individuals for public office because of their religion.

    1. Yes, Prof, do tell us how you feel about Feinstein’s “the dogma runs strongly in you”.

      1. Stale intolerance is not improved by a foundation of superstition.

        And not all Christians, or Catholics, are bigoted and backward. Just the Republicans, mostly.

        1. Yes, bigotry and ignorance still live in America. Thanks for providing us a living example as proof.

          1. the only difference between artie and the KKK is the color of his wardrobe. The hate is still there.

            1. Disliking backwardness and bigotry is a virtue.

    2. Opposing or supporting a nominee because of her perceived religiosity are two sides of the same intellectually and morally corrupt coin.

  11. The lack of evidence on either side of this is pretty astonishing. It seems little more than rank speculation. It seems at least as likely there is some personal animus for the time they were both in private practice in Washington DC.

  12. Sigh…

    It’s getting more and more difficult to identify the RINO/CINO everyday.

  13. Mike Lee has been in the Senate for 8 years, can you point to any other action Lee has taken where he has put “Christian Identity” above his normal GOP libertarian lite leanings. Did he even give Josh Harley any support in his Rao questioning?

    As for Harley, he clerked for Roberts about 4 years after Rao clerked for Thomas, both were in DC for about 3 or 4 years around 2008 -2011, both were active in the Federalist society. It’s a lot easier to assume he heard some things that he wasn’t sure about relating to some of his hot buttons, and wanted some more answers.

    For a Republican Party that has seen William Brennen, Harry Blackmun John Paul Stevens, David Souter nominated and confirmed, I applaud any republican senator that wants to make sure he’s getting what he thinks he’s voting for.

    1. Warren
      Brennan
      Stevens
      Souter
      Kennedy
      Roberts
      et. al.

  14. This is definitely one of the worst articles ever published at VC. I can’t believe the author is softly accusing Hawley and Lee of being “white supremacists” simply because they raised concerned with nominees. That is their senatorial obligation and duty, and regardless, in Rao’s case, the issues were resolved.

    Bernstein, it seems, lives in a fantasy world of his own.

  15. I’m reading this as an April Fool, that got clogged up in the computer by mistake.

    1. You’re being kind.

  16. Anyone from the country now known as Iran who fashions themselves an American conservative would never in a million years acknowledge the illegitimate Islamic Republic. I know a ton of them and they all refer to themselves as Persian. Also, if you want to see something hilarious, namedrop Jimmy Carter in their company. Literally Hitler to Persians who fled because of the Ayatollah.

    1. Parsees left Persia about 12 centuries before the Ayatollahs took charge, I kind of doubt they pay much attention to any political developments in Iran in the last half dozen centuries at least.

    2. They refer to themselves as Persians as a matter of political correctness.

      Iran has been called Iran by Iranians for milllenia.

      1. It’s not political correctness, it’s protest. They hate the current Islamic Republic of Iran and want nothing to do with it because they supported the Shah. It’s the same discrepancy as Burma/Myanmar even though both names have been used for centuries.

        1. OK.

          Delightful guy, the Shah.

          Maybe if your friends, and the US, had been a little less supportive of him we wouldn’t have the mess there we have today.

          You don’t have to be a fan of the Islamic Republic to understand that much of our trouble is self-inflicted, and some is British-inflicted.

        2. I went to college with a guy from Iran, he always referred to himself as Persian. That was before the Shah fell and the Islamic Republic was founded.

  17. Just noticed an ambiguity in the title of this post. Not White “Chrisitian Identity” Politics, as in the politics of the white supremacist Chritian Identity movement, but “White, Christian” Identity Politics, as in “we trust and prefer people in high office who share a background we identify with.” And for what it’s worth, I’ve heard plenty of conservatives favoring this or that potential SCOTUS nominee on the grounds that he or she would be “trustworthy” because of their “background,” especially religiosity. To my mind, a well-thought-out judicial philosophy and the willingness to issue unpopular rulings easily trumps any of that, unless one wants to get into the sort of “wise Latina” territory conservatives usually mock.

    The irony of Bernstein bemoaning people wanting judges whose background they “identify with” in an article where he just slandered Republican Senators as racists and anti-Semites for the crime of questioning his friends and fellow Ivy graduates should be lost on no one. I guess self awareness isn’t one of the things Yale teaches.

  18. Without a doubt, abortion is going to be the lurking question, asked or unasked, from now until finally formulates from a culture war issue to a social war issue to a distant future where undoubtedly it will be open civil war. The latter will only happen when people realize that they are necessarily religious and just can’t escape from it.

    Now in America, that usually happens only after a 9/11 or a Pear Harbor or something. No problem. God sends those things along on his/her own schedule.

    I’m not saying that compromises aren’t good things. Just suggesting that critical issues like slavery and the life value status of fully viable 25-week babies can’t be patched over and disguised forever. Then once you admit a 25 weeker seems pretty human, then at 15 weeks with a heartbeat, brainwaves, fingers, toes, gonads and all that the argument will be made.

    Settled law. Like the Fugitive Slave thing?

    1. Another right-wing vote for superstition over reason!

      Superstition is “necessary.”

      Carry on, clingers. More fantasizing about turning the tide of America’s culture war, perhaps.

      1. Right, it’s superstitious to notice that developmental process is gradually transforming a fertilized egg into a complete human being.

        1. The key point is “slowly”. At 6 weeks, when the Georgia law wants to call a person, It’s a spinal cord with no brain waves and a heartbeat. The hard-core religionists don’t care about about science. They just want women barefoot, pregnant and back in the kitchen. And they want you to only have sex for procreation.

      2. I wonder if God will be selling tickets to all of us stupid “superstitious” Christians when old Cuckland gets to roll up the Pearly Gates and be judged. That is going to be a great popcorn moment…

        1. Screw God and the horse he rode in on.

          1. Apedad perfectly encapsulates atheistic motivated reasoning in one (ironic) comment.

        2. You’re a man of the Lord, Jimmy?

          1. Hell yeah Cuckland!

  19. Professor Bernstein if you are going to slander the evil “Christians”, could you at least try and spell the name of the religion correctly. In the “update” paragraph alone, you mispell “Christian” twice. It sort of lets the mask slip and shows your real attitude a bit too much I think.

    1. Never attribute to malice what could be adequately explained by bad spelling.

  20. Under normal circumstances, one would think that would have been enough to quell any doubts about Liu based on her membership in an organization that opposed Alito. After all, Lee himself was an attorney at Sidley & Austin in Washington, D.C., from 1999 to 2002. At that time, Sidley was a significant donor to NAWL. Obviously, he knows from experience that one’s professional affiliations don’t necessarily indicate one’s personal views.

    Being employed at a large firm that happens to donate to liberal causes is not even close to being a ranking member of a political organization, which is all National Association of Women Lawyers (NAWL) is. Her membership in that organization is fair game and does create serious questions about her true commitment to conservative ideas. And those questions can even be asked by evil, White Christians Professor Bernstien. White Christians get to ask questions too as painful as that is for you to accept.

    1. You keep on sticking up for poor, persecuted white male Christian bigots, John.

      It might periodically take your mind off getting stomped in the culture war.

      1. Thank you for prividing more proof of the failure of the American education system. Granted, you are likely an 8th grade drop out but your being allowed to progress even that far shows the profound failure of the system.

        1. You give Cuckland too much credit thinking he has an 8th grade education. Truth is he has a phd in feminism which is the equivalent of a 1st grade education.

  21. “Unfortunately, in both situations it’s all-too-easy to come up with bad reasons.”

    Um, what? You can have that concern if you want, but this article cites literally no evidence whatsoever to lend credence to that theory over any other reason for extra scrutiny, and from all of two cited people. Show me anything beyond rank speculation and I’ll start getting interested. But this isn’t even weak tea, it’s just water.

  22. “The only basis provided for concluding that Liu might be pro-choice is Liu’s 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, whose slogan is “Empowering Women in the Legal Profession Since 1899.” Any statements it makes related to abortion are tangential to its mission. Liu said that she played no role in the decision to oppose Alito’s nomination, and no one contradicted her assertion.”

    So, she joined a sexist organization that engages in left wing political activism, and lost her nomination over it?

    Good.

    Oh, and it’s not “concerns about reproductive rights”, it’s “demanding obeisance to an illegitimate Supreme Court ruling that forced abortion on the nation.”

    When you use the Left’s language, you establish that you, yourself, should not be trusted.

    Is there a “National Association of Men Lawyers”? What would happen to a male nominee who supported such an organization?

    Either sexism is wrong, or it isn’t. If it is, then every single “advance the interests of women” group is wrong, and evil.

    If it isn’t wrong, then let’s stop promoting women, and promote men, instead.

  23. So is the author suggesting that we discriminate against Whites and Christians just because they happen to be of a particular race/religion?

    1. Not quite. He is saying that white Christians have no right to question non white or non Christian conservatives without drawing the suspicion of being racist. It is a clever piece of intersectional thinking.

      1. It takes real galaxy brain to not find a problem with senators questioning a nominees’ religious beliefs (despite its explicit prohibition in the Constitution), but accusing senators of bigotry for not supporting a nominee because of policy.

      2. I should have looked up “intersectional(ism)” earlier. I must of confused people when I said I supported intersectionalism because I thought it meant you hoped SJW’s or feminists got hit while illegally crossing an intersection. My bad.

  24. and, according to reports, personal reassurances from Rao’s former boss Justice Clarence Thomas regarding her conservative bona fides, Hawley relented and Rao was confirmed

    This certainly undercuts the the thesis. Kind of hard to assert that someone is into White Identity Politics (whatever that is) when a nominee is cleared by being vouched for by a black man. (Whom the same group treats as almost the personfication of what they want in conservative justice.)

  25. This suspicion seems rather unwarranted and not entirely reasonable, but who knows. I guess Bernstein has the right to his subjective suspicions.

    I’d note that, generally, Republicans and conservatives ARE especially welcoming to minorities. For example, Breitbart constantly touts its diversity, and is especially fond of the New York Times’ admission that Breitbarts’ newsroom was more diverse than their own and other liberal news media. The viral fame of Candace Owens, and actually dozens of lesser internet celebrities with surprising amounts of followers and influence, is often based on their specific (and valuable) perspective as minorities. The examples are endless, and the reasons are obvious. Conservatives seeking to preserve the tradition of liberty and American values are enthusiastic about demonstrating the universality and correctness of their ideals (and rebutting the frequently disingenuous false accusations of racism). Nothing demonstrates that better than the integration and embrace of those ideals by millions upon millions of people from very different backgrounds, which is what happens in America all the time. It’s called assimilation.

    1. I’d note that, generally, Republicans and conservatives ARE especially welcoming to minorities. For example, Breitbart constantly touts its diversity,

      Isn’t Breitbart the one that had the ‘Black Crime’ page for a while? Not that conservatives are all racist, but maybe pick a non-racist example in the future?

      1. They’re not racist. They do love to run tabloid-style coverage outrageously emphasizing whatever facts leftists hustle to cover up and downplay, like black crime.

        1. Even then they apparently only had seven stories over years with the “black crime” tag, so really not even an emphasis in coverage. Just a bit of trolling.

        2. Allow me to refer you to the Rule of Goats.

          1. Doesn’t apply, unless you use a definition of racism that would establish all mainstream media outlets are anti-white racists for under-reporting black crime, under-reporting police violence against whites and over-reporting violence against blacks, etc.

            1. You assume a great deal about black crimes being underreported. Perhaps on accounta your sources being like Breitbart.

              1. Also, of course, mainstream media doesn’t have a section called ‘white crime.’

                Being racist for satirical purposes? Still racist. Just like with the thing with goats.

                1. I would agree that being racist for satirical purposes is still racist.

    2. I’d note that, generally, Republicans and conservatives ARE especially welcoming to minorities.

      How many black Republicans in the Senate, you half-educated yahoo?

      How many black Republicans in the House, you disaffected bigot?

      How many black Republicans in the United States, you right-wing rube?

      How many people perceive the “very fine people on both sides” Republican Party, or the “Muslim ban” Republican Party, or the “Mexican judge (from Indiana) bad” Republican Party to be welcoming to minorities?

      You guys might as well embrace the bigotry and claim as many votes with it as you can, because the stain of bigotry will be part of the Republican brand for at least a couple of generations.

      Carry on, clingers.

      1. Trump’s approval rating with Hispanics is now over 50%. Enjoy!

        1. You need to get out .

          Recent YouGov, Quinnipiac and Post-ABC News polls put his approval rating among Hispanics at 27 percent, 23 percent and 18 percent, respectively. Those numbers average out to about 23 percent ? that’s a substantial chunk, and it’s not so different from his 2016 vote share. According to demographers Ruy Teixeira, Rob Griffin and John Halpin, Trump won 29 percent of the Latino vote against Hillary Clinton in 2016.

          1. Supposed to be get out more, but you get the idea.

            1. McLaughlin, Marist/NPR/PBS, and Morning Consult/Politico show 50, 50, and 45. The most accurate guess is probably somewhere in between. Trump got a higher share in 2016 than Romney did, and it looks like 45% of Hispanics in FL voted R in 2018.

              Looks like the NYT published an article about the Hispanic vote today. The top comment there is typical and instructive.

              1. Read the article you posted.

  26. “Liu’s husband and Rao are friends and former colleagues of mine.”

    Thanks for the disclosure. Now I can write off this unfortunate post as the product of personal interest.

    Playing the race card like this is unbecoming of you.

    1. Personal intererest would make him support Rao. It wouldn’t make him see the pattern he posts about.

      I’m skeptical of his post as well. But engage with the substance, not this speculative ad-hom that isn’t even on point.

      1. “speculative ad-hom”

        There is no “substance” accusing Lee and the others of racism is the real speculative ad-hom.

        His friendship is making him white knight.

        1. Then talk about the lack of substance, don’t pop-psychoanalyze him.

      2. The point is ridiculous, at least concerning Mike Lee, as a Trump skeptical Mormon, when the White Christian Identity movement really starts going after its enemies nothing Mike Lee has said or done is going to put on their safe list.

        As for Josh Hawley, he is so new on the scene I can’t point to any real evidence one way or another, but that charge hardly seems like it fits the profile for a Roberts or McConnell clerk.

        1. See, this is how you do it. Substantive criticism with facts and names. I don’t know that it’s right, but it’s meaty at least.

    2. The “further update” isn’t helping.

      “I am not accusing them of being white supremicists, just racists.”

  27. “…what I am saying is that when Republican Senators and their allies on the issue successively question the conservative bona fides of two Trump nominees who don’t fit the stereoptypical mold of a “conservative” while other “mold-fitting” nominees for similar positions haven’t faced similar scrutiny, it raises the question of whether the lack of mold-fit played a role in raising doubts about their conservatism.”

    Examples????

    1. No, “it” doesn’t raise such questions. “You” raised such questions because you have an agenda.

  28. This is shockingly thin. Even from MSNBC, one would expect more than one example each of opposition by Lee or Hawley to a non-white or non-Christian nominee. Even CNN might feel a need to explain away Lee’s full-throated endorsement of Rau before leaping to a race-related conclusion about his concern over Liu. They probably (MSNBC certainly) would mention NAWL’s pro-abortion amicus briefs that may well have been far more important than the Alito issue. And anyone but a law professor would wonder if Lee didn’t have his own candidate for the ASG position.

    I expect more from the Volokh Conspiracy contributors

  29. This is really a garbage take. Like monumentally garbage. Firstly, you are equating Christian with white, which is so profoundly stupid that I thought only the identitarian Left pushed such nonsense.

  30. Another point: Bernstein uses “Identity Politics” very, very incorrectly here.

    His charge is that Republican senators may have unconscious bias toward minorities (racial or religious) and that this may be affecting their scrutiny of appointees. That’s not identity politics. Identity politics is overt politicking based on identity-based divisions or grievances.

    “Identity Politics” would be if Republican senators got up and said to the American people, “This person is not even [white,Christian,etc]!! Do they share the correct values and principles? I think we need the perspective of a white Christian on the court.”

    Or, “Protestants are underrepresented on this court of six Catholics and three Jews, probably due to systemic discrimination. Protestants founded this country and invented this legal system. We need the perspective of a Protestant on the court.”

    1. Good point!

    2. Or, “Protestants are underrepresented on this court of six Catholics and three Jews, probably due to systemic discrimination. Protestants founded this country and invented this legal system. We need the perspective of a Protestant on the court.”

      Truth – would you really have a problem with a senator saying that? Or would you crack up laughing and consider voting for the guy for having balls?

  31. The only basis provided for concluding that Liu might be pro-choice is Liu’s 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, whose slogan is “Empowering Women in the Legal Profession Since 1899.” Any statements it makes related to abortion are tangential to its mission. Liu said that she played no role in the decision to oppose Alito’s nomination, and no one contradicted her assertion.

    This might be her defense, but the notion that this is not a basis to question her, and that racism or religious bigotry must be involved, is nothing more than muck-raking. If you are staunchly anti-abortion and want to see Roe v. Wade overturned, membership in NAWL would certainly be a red-flag.

  32. You need to read the article today with NAWL’s statement denouncing the criticism of and opposition to Jesse Liu. The article states: “NAWL, which was founded in 1899, has over the past few decades taken sides on political issues and believes in a woman’s right to choose to have an abortion. The group said in its statement that it is dedicated to upholding women’s legal rights, “including protecting those rights reflected in our federal Constitution and in U.S. Supreme Court precedent.” In other words, pro life Senators and others of us were actually correct in our concern about Liu’s Affiliation with a pro abortion organization. Nothing to do with her ethnicity. Surprised that you are vociferously spouting the Left’s identity politics mantra. Our concerns about Liu are verified by NAWL’s own words.

  33. “. Suggesting possible cognitive bias in evaluating nominees is a far cry from suggesting white supremacism.”

    I’m not sayin’ …. I’m just sayin.’ Now ask them whether they’ve stopped beating their wives.

    1. He’s just asking questions!

  34. Mr. Bernstein, maybe you don’t understand that to a Christian, Liu was a supporting member of an organization that supports and defends the killing of babies. I’m not exaggerating for rhetorical effect here; I’m expressing how Christians truly see it: Liu was a member of an organization that supports one of the greatest horrors in history–a genocide where millions of mothers have been encouraged to kill their own babies. Waving off her membership by saying that she supported Alito is like waving off membership in a Nazi organization by saying that she had Jewish friends. Until you grasp this essential fact about the Christian viewpoint, you have no business commenting in public about any possible hidden motives.

    So in two instances now, you have accused Christians of being bigots for opposing non-Christians who were nominated. And in both situations, your ENTIRE case was that David Bernstein didn’t think their stated reasons for opposing the non-Christians were strong enough to justify the opposition. Here’s a fact of life, Mr. Bernstein: people disagree. And when people disagree, they can’t always convince the other side, not even that they have good reasons for disagreeing. That’s just the way life is. Looking for hidden Christian bigotry is not a productive response to this fact of life. All it does is reveal you for an anti-Christian bigot.

  35. As Teddy Roosevelt noted, “hyphenated”-Americans, aren’t Americans – they’re whatever they claim to be first.

    And it’s rather interesting seeing Bernstein decry supposed “implicit white Christian identity politics” as “a bad look” for Republicans, while he advocates for two individuals to whom he is connected by identity politics (their supposed links to Judaism.)

    As usual, it looks like only whites, Christians, and Americans (and to a lesser extent, heterosexuals and men), are not allowed to hold onto any identity, just everyone else.

  36. So it’s “close to identity politics” because the author of this article selectively focused on two candidates who he subjectively felt had received an extra question or two because they’re not white?

    Geez, they’re as bad as the Democrats!

  37. It seems less that the Republicans in question were engaged in identity politics (although one’s views are part of their identity) than that Bernstein is engaging in identity politics by speculating that identity is an “unconscious” reason for criticism.

    Maybe we can have robots govern us, assuming that they lack any “identity” from which others can infer factors into decision making.

  38. I don’t quite understand this blog post. Trump has been nominating conservative minority judges on a pace I have not seen in my lifetime. It is the democrats who have been pushing back on many nominations. I am disappointed that Patrick Bumatay (Yale/Harvard) was axed from nomination from the Ninth Circuit based on objections from Senators Kamala and Feinstein, among other democratic senators. Yet, there is no discussion of identity politics when a democratic senator disapproves of a conservative minority. Why?

  39. Given the number of high profile non-white “conservatives” who have had “awakenings,” like Michael Steele and Ana Navarro, just to name two, I don’t think it’s unreasonable to be extra sure before confirming such a person.

  40. I’ve refrained from commenting until now. However…

    Frankly, this is far, far, too small a set to make assumptions about “identity politics” or items like it. A n=1, with n=2 against it.

    Keep in mind, Rao was confirmed…by all the GOP. While voted against by the Democrats. And Liu was confirmed by a voice vote in her first appointment with the Trump administration. There’s no real history of anything else like this. Moreover, this is an odd position to suddenly be concerned about political views. #3 in the Justice department? This isn’t a judge, it’s not a lifetime position, and if Liu has any qualms about defending an abortion case, it can be booted to another person pretty easily.

    I’ll be honest. The shouting match between Lee and Barr is odd. That type of thing doesn’t really come up with “racial animus.” The more likely explanation is that Liu did “something” in the last 2 years to really tee off some GOP members in particular. Insider politics. That type of thing will get people into shouting matches, that sort of thing will lead to people shooting down promotions within the Justice Department. Not “racial animus”

    But we’ll never know for sure. Still, throwing out these semi-accusations that are weakly supported, at best, is not helpful

    1. I agree. It seems unlikely that the GOP Senators are seething with unconscious racial animus if they confirmed her to another position on a voice vote 18 months ago. Either, as you say, she’s done something in the last couple of years that has really teed off folk like Lee. Or….

      …the gossip circuit has Liu down as pro choice and Lee doesn’t want someone like that in a key DoJ position. I note that Bernstein is a friend of her husband, but not – or else he’d have said so – of her. So it’s quite possible that he doesn’t know her views on abortion. But it’s unlikely that members of the GOP Senate caucus are wholly in the dark on the point. It may be that her membership of NAWL is the only public clue. But they do have a lot of informal social gatherings in DC.

      So my money would be on her being known to be pro C on the DC social circuit. She could no doubt have reassured Lee in private if she is in fact pro L, but isn’t and so didn’t.

      Hence there is some seething animus, but it’s anti pro C-ers (for senior DoJ policy and operational positions) not racial.

  41. You have no facts to support your claim of unconscious bias. Therefore you should not make the accusation. Also the concept itself is ridiculous .

  42. I have noticed for a long time that social conservatives often see themselves as the only “true” conservatives, even though there is a great difference between social conservatives and political conservatives. I would suggest this is why the Republican Party has had trouble getting good candidates for national office, such as the presidency.

  43. But I do suspect that in certain conservative circles, people have an image in their head of what a “trustworthy” conservative looks like, and that person is white, likely male, and a religious Christian

    You do understand that this ‘suspicion’–and the conclusions you happily draw from what you admit is rank speculation on your part mean that you’re a racist asshole, don’t you?

    Perhaps, you could seek out some kind of conflagration and fuck of and die in it. Make the world a bit better by your sacrifice.

    1. If I could upvote this comment a thousand times, I would.

      1. Bigoted malcontents unite!

        Inconsequentially, of course, but bitter muttering apparently is rewarding nonetheless for some people.

        1. Bigoted malcontents unite!

          You ARE united you inbred mouth breathing imbecile. That’s the problem.

  44. I think it’s a mistake to question someone else’s motives, since we have no idea. Most of the vitriol in politics comes from this “motive attribution asymmetry” ? my motives are pure, yours are not. Let’s just focus on the actual arguments and issues.

  45. Taking “white” an “Christian” out of that headline was not a brave act.

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