Let the Borking Begin

Horace Cooper
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Posted: Nov 14, 2005 12:05 AM
A brilliant appellate court judge, widely recognized for his legal scholarship, is nominated to fill the second vacancy on the United States Supreme Court. He is nominated by an anti-abortion Republican president, who pledged only to appoint conservative, “strict constructionist” judges, who would interpret—not legislate—from the bench.

Rather than admit that they oppose him on ideological or philosophical grounds, special interest groups and liberal Democrats instead choose the low road. Lamenting that they had allowed the President’s nominee for chief justice to sail through a confirmation with little controversy, this time they have decided to engage in a smear campaign.

First, they examined his judicial record to see which cases they could distort and misrepresent to the American public. They argued that if he were to join the Supreme Court, he would roll back the clock on minority and women’s rights. When that failed, they regrouped to attack his ethics by using an old allegation involving a conflict of interest.

Historian David McCullough reminds us: “A nation that forgets its past can function no better than an individual with amnesia.” However, the case to which McCullough refers takes us back to the year 1969. The brilliant judge was Clement F. Haynsworth, Jr., and the president was Richard M. Nixon. Yet, McCullough’s admonition rings true today. Instead of abortion, the issue back then for senators and activists groups was civil rights. Led by Senator Birch Bayh of Indiana, a cadre of Senate Democrats worked hand-in-glove with special interest groups to organize the first “borking” of a Supreme Court nominee.

But any fair reading of Judge Haynsworth's record would have shown no evidence that he was an opponent of blacks or other minorities. His actual record involving civil rights litigation was fairly limited, involving fewer than a dozen cases and showing no discernible predispositions one way or another. But for his critics, these facts didn’t matter, as they embarked on a concerted effort to present him as an unrepentant segregationist.

But that charge alone proved insufficient to torpedo his nomination. His critics then pulled another arrow out of their quiver: a decades-old claim that Haynsworth had ruled in a case involving the Vend-A-Matic Company, a company in which he held 3% of its shares. Even though a thorough examination demonstrated there wasn’t any ethical impropriety involved whatsoever in the case—in fact the matter had been extensively investigated and resolved well before he would ever be nominated to the Supreme Court—his opponents made the charge gain traction by reviving it over and over again.

Later, Senator Bayh's chief of staff Bob Keefe confessed, "To maintain the fantasy that they were unworthy for reasons other than their judicial philosophy, we had to develop other rationales. In the case of Haynsworth, we found that he had a rather loose view of the appearance of conflict of interest."

Tragically their techniques worked. The United States Senate rejected Clement F. Haynsworth, Jr.’s nomination to be an associate justice of the Supreme Court by a vote of 55 to 45.

Today, the year is 2005, and some Democrats and hardliners on the left think the American people are raging amnesiacs that won’t notice the same playbook being used again. This time, the target is Samuel Alito, the brilliant appellate court judge nominated this week by President Bush to replace Justice Sandra Day O'Connor.

And once again, rather than admit that they oppose him solely based on his “judicial philosophy,” his critics have attempted to distort his judicial record. And apparently, having failed at mischaracterizing his views as extreme on issues involving religion and abortion, they have decided to play the ethics card.

Today’s charge is conflict of interest based on a case back in 2002. In that case, a losing plaintiff complained after a three judge panel (which included Judge Alito) issued a unanimous opinio favoring the Vanguard Group Inc. The claim was that Judge Alito should not have participated in the decision, since he owned shares of the firm's mutual funds. At the time, Judge Alito said he believed he had done nothing improper. In fact, the Administrative Office of the U.S. Court even advises that judges not be required to disqualify themselves from cases involving their mutual-fund management companies.

But after a rehearing petition was filed, the case was reheard by a new three-judge panel. And guess what? The new panel issued a unanimous opinion, which was almost a word- for-word repeat of the original ruling. Now, this should have demonstrated to all but the most close-minded, that the complaint was unwarranted. Yet, now in the wake of his nomination to the Supreme Court, a whisper campaign has started, suggesting that this issue should be reexamined.

History is unlikely to repeat itself. Unlike thirty years ago, a smear campaign against a Supreme Court nominee based on falsehoods and misrepresentations won’t work today. Information can’t simply be strategically disseminated to collaborators at three news networks (ABC, CBS, and NBC) and a few major papers and still be considered comprehensive like it could then. Today, news is distributed 24/7 by cable networks, like Fox Cable News and MSNBC. Combined with the research skills of bloggers and the ubiquity of talk radio, falsehoods can be easily responded to and dismissed.

Notwithstanding the antiseptic benefits of the Internet and multiple resources for news and information, distortions can still affect the Supreme Court confirmation process. Why? Primarily due to one key failing: the quest to make ideology the sole talisman of fitness to serve on the United States Supreme Court. Rather than temperament, legal skill, or character, judicial philosophy alone is increasingly what critics and opponents of the Court nominees are pursuing.

In addition to turning a vacancy on the Court into the equivalent of a national political campaign,—something the framers would never have anticipated—the current process has promoted the selection of so called “beyond reproach” stealth nominees to such a constricted and stilted degree, so that members of the Supreme Court have become less and less representative of America at large. Is it any wonder then that these individuals yield to the temptation to rule over us rather than among us?

Back in 1969, the smear tactics worked against Clement Haynsworth’s nomination. Ultimately, he returned to the 4th Circuit Court of Appeals after his defeat in the Senate, but it took nearly two decades to rehabilitate his reputation.

Haynsworth’s legacy, however, would be the culmination of an elaborate process – the creation of the political “reverse hate crime.” This “reverse hate crime” forces all past and future Supreme Court nominees to run a gauntlet of intrusive and sometimes destructive processes solely created to ascertain and assess a judge’s internal judicial philosophy. But unlike a court of law, where the accused is innocent until proven guilty, here Senators, activists, members of the media, and other duly deputized agents are allowed to undertake any and all measures necessary to pin down a nominee’s philosophy in order to prove they are unfit to join the Court.

It began nearly two decades before President Ronald Reagan nominated legal scholar and judge Robert Bork to the Supreme Court and has since evolved to the point that it now encompasses intrigue, political strategy, active involvement by outside interest groups, and scrutiny beyond which many nominees find too great to bear. Indeed, it is the modern Supreme Court confirmation process. Although Judge Alito will likely pass through this gauntlet, only history will be the judge of whether it can ever be brought under control.