Strengthening Constitutional Self-Government

No Left Turns

Don't They Remember How Proud They Were of Making "Borking" a Verb?

Only some young thing who thinks the world started with their graduation from an Ivy League school could write this paragraph without self-conscious irony:

As Doug Kendall of the Constitutional Accountability Center explained today, the Republicans who opposed Liu's nomination "were completely ignoring what Goodwin Liu testified to under oath," instead relying on "a distorted interpretation of things he said years ago in his scholarship." It was as if the sworn testimony had never even happened. Liu testified not once but twice before the Senate Judiciary Committee, and he was unfailingly temperate, scholarly, and sober. Yet from the start Republicans depicted him as the Tim Riggins of the legal academy--all beer-soaked hair and bloody knuckles--and never varied that picture in the face of the evidence. The caricature of Liu as careless and reckless and "wacky" never dimmed, even while it never fit. A few lines plucked from a few articles, repeated on an infinite loop, obscured one of the most thoughtful and serious legal minds of a generation.

I'm pretty sure that's exactly what Bork's defenders said to no avail in 1987.  Dear Ms. Lithwick: Waht goes around comes around.  Deal with it.

Discussions - 1 Comment

Hardly, she is simply tracking the wisdom of Rule 401 and Rule 403 of the federal rules of evidence. Here she is argueing that the evidence was irrelevant under 401, but in the alternative if relevant, evidence with a low probative value substantially outweighed by unfairly prejudicial risk.

Not that I am saying these rules mechanically apply here. But the general principles behind these rules have a history. Whatever Bork's defenders said in 1987, is irrelevant, and the ability to step over history with or without self conscious irony is an end in itself.

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