Earlier this week, the Wall Street Journal attacked Sen. Josh Hawley in a snotty, condescending editorial. Hawley’s sin? He said he needed to learn more about the views of Neomi Rao, President Trump’s nominee for the D.C. Circuit, before he could vote for her confirmation.
Hawley was concerned about an article Rao wrote regarding the role of “dignity” in constitutional law. “Dignity” is the core concept in Justice Kennedy’s worst jurisprudence. He and others have used it to find constitutional “rights” that aren’t conferred by the language of the Constitution.
In addition, Hawley had heard that Rao once expressed “pro-choice” views on the subject of abortion. This compounded his concern over her article on dignity. But Hawley never said he wouldn’t vote for Rao, only that he had concerns and wanted to perform his due diligence.
This was too much for the Wall Street Journal. Its editorial claimed that Hawley was indulging in opportunism, has “a lean and hungry look,” is an upstart, and — in sum — should shut up.
The editorial offended some of Hawley’s Senate colleagues (and, most likely, Hawley as well). Sen. Marco Rubio tweeted:
Rather than engage @HawleyMO arguments the @WSJopinion decides to take ad hominem cheap shots instead. The @WSJ produces great journalism & commentary. But its editorial board is increasingly attacks people instead of debating against ideas or policies.
In response, the Wall Street Journal has renewed its attack on Sen. Hawley. It finds that its initial attack was, if anything, “too soft.” No more Mr. Nice Guy this time around.
The Journal’s followup editorial is almost as embarrassing as its initial effort. Once again, the editors insist that Sen. Hawley has acted in bad faith.
To support this smear, they complain that “if [Sen. Hawley] has concerns about [Rao’s] views, he could have done what Senator Joni Ernst did on sexual assault and discuss them with Ms. Rao in private.”
But that’s what Hawley did. He met with Rao and tried to engage her in a discussion of her writing. Rao erred on the side of caution (as nominees routinely do these days) and was guarded in her answers.
Hawley wanted a fuller discussion and was not satisfied with the exchange. He understands that nominees can’t discuss their positions on particular legal issues, but sees no reason why they can’t discuss in depth questions of jurisprudence they have written about in law review articles.
Fortunately, Hawley and Rao met again. This time, as I understand it, Rao was more forthcoming. Accordingly, Hawley voted in favor in the Judiciary Committee yesterday.
About Rao’s article on “dignity,” the main source of Hawley’s concern, the Journal says that “her quotes analyze what the Court’s majority has said on dignity and privacy rights; they don’t endorse those views.”
That’s true. As I read the article, Rao doesn’t not endorse the use of “dignity” in constitutional adjudication. But she doesn’t reject it, either. At one point she expresses skepticism, but seems to accept that it’s sufficiently embedded in Supreme Court jurisprudence that there may be no turning back.
If Rao had endorsed the role of “dignity” in constitutional law, Hawley would likely have been a “no” vote. If she had repudiated it, he likely would have been a “yes” with no more questions asked. Since she did neither, Hawley wanted to learn more.
What’s wrong with that?
What if we were talking about a nominee whose writings raised doubts regarding one of the Journal’s pet issues? Imagine a nominee for a job involving trade issues.
Imagine that the Journal received a report that the nominee had said she favored stiff tariffs. Imagine that the nominee had written a long article about stiff tariffs without ever saying, positively, that they are a bad idea.
How would the Wall Street Journal’s editorial board treat such a nominee? Considerably worse than Sen. Hawley treated Neomi Rao, I’m pretty sure.
The Journal’s shrill and baseless attacks on Josh Hawley are a good example of what its second editorial purports to denounce — “The Right Hurt[ing] Its Own.”