Chickens Haven’t Hatched Yet

Posted: Aug 03, 2005 12:00 AM

It was around this time of year—during the dog days of the August recess—that a conservative Supreme Court nominee who had appeared destined for a relatively smooth confirmation suddenly found himself firmly in the Left’s crosshairs.  Democratic Congressmen and Senators, once back home with their constituents, went from relative neutrality on the President’s pick to outright hostility.

It was 14 years ago, and the nominee, of course, was Clarence Thomas.

White House aides and the network built for ensuring John Roberts’ confirmation to the high court are well aware of the sudden sucker-punch—and they know that the Left has a lot more money this time around to help history repeat itself. 

With tens of millions already raised long before Bush’s pick was announced, leftist organizations are almost certainly not going to let Roberts join the Supreme Court without at least a serious dose of partisan hazing.

After being caught flat-footed and then desperately searching for grounds on which to attack the nominee—including initiating a whisper campaign about Robert’s pro-life wife—the crowd now seems to be digging in for a bloody battle.  They most likely aren’t expecting a victory, nor should they.  The goal, however, would be to damage the President and lay the groundwork for an even more vicious fight on the next nomination.

Not to mention that the leftist groups have more than $20 million burning a hole in their pockets.

When the White House last week released papers related to Roberts’ work in the Reagan Justice Department, it didn’t take the left-wing attack machinery long to start grinding.  Theodore Shaw of the NAACP, speaking at a National Urban League convention, said that a mere two days’ worth of reviewing Roberts' Reagan-era tenure made him “deeply disturbed.”

Mainstream media outlets have coalesced around the conventional wisdom that the nominee will not encounter much resistance on his path to the Supreme Court.  That Roberts is coming under attack now, however, should not come as much of a surprise.

It’s not difficult to see why the Roberts’ nomination appeared headed for comfortable confirmation.  His first week in the public spotlight was almost universally positive, with most pointing to his low-key style and undeniable brilliance.

Roberts’ first week is even more amazing when compared to that of Robert Bork after Ronald Reagan announced his nomination in 1987.  Within an hour, Teddy Kennedy declared that Bork would help re-make America into a place where “women would be forced into back-alley abortions [and] blacks would sit at segregated lunch counters.”  The rap stuck, and Bork was soundly defeated, 58-42.

Yet Bork is obviously not the only precedent for a controversial conservative nominee to the Supreme Court.  For several weeks after Clarence Thomas was announced on July 1, 1991, Democrats and leftist activists mainly bit around the ankles, without any frontal assaults to speak of.  It wasn’t until the tail end of the nomination hearings, in fact, that Anita Hill exploded into the headlines.

Though it is easy to forget now, Thomas seemed like a shrewd choice for the White House, a black nominee with an incredible personal story whom Democrats were supposed to have been hard-pressed to oppose.  Thomas’ nomination didn’t hit truly choppy waters until more than a month in, once Democrats in Congress went home for August.

The Washington Post article reporting on the announcement of Thomas’ nomination, in fact, noted that “opposition to his nomination seemed muted.”  In the same article, a Senate Democratic aide suggested that Thomas wouldn’t even face tough questioning from the Judiciary Committee since David Souter hadn’t.  The aide is quoted by the Post as saying, “the question will be, is a higher standard being applied to this guy than was applied to David Souter, and why.  If Souter was confirmable with non-answers, why isn’t Thomas?”

For the first month after Thomas was nominated, most attacks focused on how he was a hypocrite for opposing racial preferences or that he wasn’t authentically black because he didn’t think the way a black man “should.”  None of it was of the ilk that could torpedo a nomination.

In the current context, the early straw-grasping dealt with how Roberts helped draft White House positions as the top deputy to then-Solicitor General Ken Starr that argued for scaling back environmental or voting rights case law or, in one line of one brief, stating that Roe v. Wade should be overturned.  Then the Left and the Washington Post went nuts with the is-he-or-isn’t-he nonsense over whether or not Roberts was actually ever a member of the conservative Federalist Society.

Delving into “strange even by Washington standards” territory, the Left began whispering that Roberts’ wife might be a little nutty since was on the board of the pro-life Feminists for Life.  They not-so-subtly implied that this might mean that Mr. Roberts is also pro-life.  Yet even though Feminists for life also opposes the death penalty, no one on the Left expressed fears that her board membership somehow might mean that he is against capital punishment.

Armed with only Reagan-era documents at this point, Roberts’ enemies—whom he inherited the moment he was announced—have already found a new line of attack: demonizing the Gipper.  To the Left, the 1980’s were a dark period, where stupid Americans foolishly elected two successive Cretans as commander-in-chief.  And since Roberts supported Reagan’s vision while working for his Justice Department, he, too, must be a “dangerous” right-winger. 

Ralph Neas, the combed-over president of People for the American Way, did his best to echo Kennedy’s slam of Bork by telling the Washington Post last week, “With every passing day, it is becoming clearer that John Roberts was one of the key lieutenants in the right-wing assault on civil rights laws and precedents.”

What Roberts has going for him that neither Thomas nor Bork did, however, is a GOP-controlled Senate.  Which means that the Left is likely only looking to strike blood and inflict enough damage that the White House might not want to put forward a genuine conservative on the next go-around.

At least two members of the “Gang of 14” who struck the bipartisan compromise of judicial appointments earlier this year, Sens. Mary Landrieu (D-LA) and Ben Nelson (D-NE), will be loathe to explain blocking Bush’s choice to their very red-state constituencies.  None of the Senate’s 55 Republicans would vote to filibuster Roberts, leaving the GOP at worst three votes shy of thwarting Democrats’ obstruction. 

And if the GOP wants to, it could always invoke the so-called “nuclear option” and confirm Roberts with a simple majority.

With Congress just starting its annual August recess, the White House and other Roberts’ supporters are bracing for the inevitable smear campaign.  “The pendulum will eventually swing back,” one White House official warns.  Ironically, this puts the Bush team on the side of the expectations game to which it is not accustomed.

Roberts’ backers are mindful of what happened 14 years ago.  Then again, as much as potential parallels to Thomas frighten those close to Roberts, they are nonetheless heartened by one very important fact: Thomas was eventually confirmed. 

But not without a fight.