Monica Goodling shrugged.
There wasn’t, she explained, much that she could do to help
me.
The scene: the Senate Judiciary Committee hearing room, February
26, 2002. The occasion: Senate confirmation hearings for Bush Third
Circuit judicial nominee D. Brooks Smith. Smith was at the time the
sitting Chief Judge of the Western District of Pennsylvania, where
he had served since his appointment by Ronald Reagan fourteen years
earlier.
At the time I had put aside a writing career to assist in the
confirmation of Judge Smith, an old friend from college days. In an
earlier life I had been a political director in the Reagan White
House, our office tasked with working on the Senate confirmations
of five Reagan Supreme Court nominees, most notably what became the
infamous fight over Judge Robert Bork. With that particular arcane
experience in my background, I had gotten back into the fray to
help Smith, working with a quickly assembled group of Smith
supporters from Pennsylvania, many of them Democrats and leading
women attorneys appalled at the sudden political gauntlet the
heretofore popular and uncontroversial Judge Smith was being forced
to run — a confirmation process run by the iron-fisted hand of
Judiciary Chairman Senator Patrick Leahy.
But even I, a veteran of judicial confirmation hearings who had
also worked on the staff of a Senator, was appalled at what I
discovered that February day. The Pennsylvania group, almost two
dozen strong, had traveled to Washington on their own dime to show
their support at the hearing. Pennsylvania’s Senator Arlen Specter
told me that day he had never seen this kind of in-person,
across-the-board support for a nominee on this kind of occasion in
his then 22 years in the Senate. Realizing this would be the
maximum moment to answer the cascade of phony charges being hurled
at Smith by the liberal special interest groups, our volunteers had
helped me put together the typical press packet of favorable clips
and letters of support for Judge Smith to be handed out at the
hearing, an unremarkable routine of Senate hearings.
Ms. Goodling, assigned by Justice to work on Smith’s nomination,
was already in the hearing room when our group arrived. As our
Pennsylvanians took seats, I looked around at the very familiar
scene. The packed crowd of the public, the press tables filled to
capacity, the television lights flooding the room as the cameras
focused on Judge Smith. Carrying stacks of our press packet I
headed for the press tables — and was stopped cold.
A woman identifying herself as an aide to Senator Leahy said
that I would be prohibited from handing out the press releases.
Looking over her shoulder I could see releases from the left-wing
Alliance for Justice being methodically handed to the press under
the watchful eye of the Alliance’s leader, lobbyist Nan Aaron, who
stood at the rear of the room. I protested, pointing to the AFJ
releases.
The Alliance for Justice, the Leahy aide snapped, was a
“non-profit.” Our press releases were going to be confiscated,
stashed under a nearby table. Can I talk to the press, I asked? No,
she said, as I watched the opposition smoothly chatting with
reporters at the table. I was to either take a seat or I would have
to leave.
Dumbfounded at the unabashed nature of this attempt at
intimidation I retreated and sought out Monica Goodling to protest.
She listened sympathetically. There was a slight roll of the eyes
as she made it clear that she recognized the atmosphere that Leahy
had created. Yes, she said, this was outrageous. Thoroughly
courteous and pleasant, Ms. Goodling was every inch the
professional. She reminded me that as someone who had served on the
Senate and White House staff myself I should know that on Capitol
Hill the executive branch had no sway. Leahy’s Judiciary Committee
was what it was, the staff responding to the tone set by the
chairman. For the sake of Judge Smith I should just forget the
press releases and quietly take my seat.
I did. But the episode turned out to be a mere snapshot of the
way Leahy ran the Judiciary Committee, and is surely playing a role
in Ms. Goodling’s recent decision to take the Fifth Amendment
rather than testify to the Leahy-run Judiciary Committee on the
current controversy over the firing of eight U.S. Attorneys. The
episode turned out to be only one example of how Leahy had allowed
Judiciary to become the focus of a completely corrupted
process.
Other examples, which were investigated at length for The
Borking Rebellion, my book about Leahy’s chairmanship of
Judiciary during the Smith confirmation hearing, are as
follows.
Misleading a Witness and Obstruction of
Justice: A liberal Pennsylvania doctor, a longtime friend
of Smith’s, took it upon himself to praise Smith in an e-mail to
fervid Smith opponents at the left-wing interest group the National
Organization for Women (NOW). To his amazement the Smith supporter
was shortly on the receiving end of a phone call from a woman
identifying herself as an investigator for Judiciary Committee
Chairman Patrick Leahy. Immediately she told an untruth: that Leahy
was looking for “additional grounds to support Judge Smith.” The
problem? Unbeknownst to the doctor, Leahy had already announced his
opposition to Smith. It is a violation of Senate rules, found under
a section entitled “Obstruction of Justice,” to misrepresent facts
to a potential witness. The apparent reason for the call: to
falsely represent Leahy’s views in the hopes of getting dirt on
Judge Smith.
The attempt failed only after a vigorous threat — including a
promise of disbarment proceedings against the investigator — by a
staff member working for Republican Senator Arlen Specter. But
launching a Senate investigator on a private citizen — and then
lying to that witness — as the result of an e-mail to a special
interest group was not the only sign of corruption at Leahy’s
Judiciary Committee.
Oral and written questions asked and submitted to Smith by
Democratic Senators turned out to have been written substantially
by two left-wing groups, the Community Rights Counsel and Aaron’s
Alliance for Justice. The most egregious offender was Senator
Russell Feingold, a perceptive Smith law clerk tracing all but
seven of twenty-eight Feingold questions to a secret AFJ/CRC memo
that was leaked to the Smith forces. Leahy himself used almost
identical text from the secret AFJ/CRC memo in a written question
to Smith, without attribution, unaware that Smith’s clerk had the
memo and thus knew the real source of Leahy’s question. Among
others who allowed the groups to write their questions to Smith —
all while implying the questions were their own — were Senators
Kennedy, Biden and Maria Cantwell.
Lobbyist Nan Aaron confessed to a Democratic friend of Smith the
reason for her presence in the hearing room that day. She was to
“stay a bit, and then walk around a bit” I was told, and then
leave. What for? Aaron’s physical movements and time in the room
while Smith was testifying (his back to her) was to signal to
Democratic Senators and their staff the degree of interest the
groups had in defeating Judge Smith.
Ethics Experts: One of the real charades of the
Smith hearings was the use of so-called “independent legal ethics
experts” whom Leahy turned to as experts on Smith’s judicial
ethics. There were three, law professors all: New York University
Professor Stephen Gillers, Northwestern University’s Steven Lubet,
and Hofstra University’s Monroe Freedman. Leahy and his Democratic
colleagues turned to all three, never revealing that Gillers was an
active left-wing partisan publicly credited by the anti-Smith CRC’s
for his help in reviewing drafts of a CRC “report” manifesto on the
federal judiciary entitled “Nothing for Free.” Lubet was a
financial contributor to the Democratic Senatorial Committee, while
Freedman served as part of an AFJ delegation of 20 law professors
to lobby undecided Senators on Smith.
Funding: Never was it mentioned by Leahy that
the work to supply the research for the Democrats on Judiciary
(those pesky questions to Judge Smith) was financed in part by a
$50,000 grant from left-wing billionaire George Soros. Nor did
Leahy ever mention that the Washington Post had struck a
deal with Soros — his funded-research painting an unethical
portrait of sitting judges in return for a front page story in the
Post, an arrangement that caused a stiff protest from then
Chief Justice William Rehnquist.
On the day of the full committee vote, while a line of the
waiting public snaked through the corridor, People for the American
Way president Ralph Neas ignored the line, walking casually through
the entrance reserved for Senators. Emerging from behind the dais,
he walked to the public area and positioned himself directly in
front of those who had waited patiently to be allowed inside.
Also on the day of the Committee vote, Washington Times
reporter Audrey Hudson reached out for a press release being handed
to her by a conservative in the crowd. A linebacker-sized Leahy
aide grabbed Ms. Hudson by the wrist, wrenching it behind her back
so hard she was literally doubled-over. Twisting her arm he
demanded she give him the release she was clutching, forcing her
into the corridor where the incident was spotted by a Capitol
police officer. Ms. Hudson reported the incident to her bureau
chief. The bureau chief promptly called Leahy’s press secretary —
who denied the incident ever happened. The Director of the Senate
Press Gallery would later ask if she wanted to file charges of
assault. A reporter to the core, she declined.
SO LET’S SAY YOU’RE Monica Goodling, what would you do? Answer a
call to testify from a controlling committee chairman whose reign
resembles more the psychology of a lynch mob than a Senate
committee? Respond voluntarily to a chairman whose record has
already included turning over the Judiciary Committee’s internal
investigative and questioning process to high-powered special
interest groups — one of which received its funding from powerful
billionaire? Whose staff tells deliberate untruths to witnesses
while resulting to thuggery in the very committee room supposedly
devoted to defending justice? Would you trust in the impartiality
of a chairman who allows unfettered access to the committee’s
private chambers to a powerful lobbyist? Or a chairman who relies
on “independent ethics experts” who have themselves, at the request
of that chairman and his Democratic colleagues, exhibited behavior
that shows a stunning conflict of interest? What exactly does one
do when she has every reason to believe the integrity of the
Judiciary Committee has been compromised — by the chairman?
While the incidents above only scratch the surface in terms of
uncovering Leahy’s abuses of the committee process, Monica
Goodling’s refusal to cooperate with the sham that is Leahy’s
Judiciary Committee raises new questions that have yet to be
asked:
Should Patrick Leahy himself be under oath? Who in the Senate
does oversight of those charged with oversight when there has been
a documented abuse and corruption of process by the committee
chairman and some of his colleagues?
Is it really Monica Goodling who needs to take the Fifth to
protect herself against self-incrimination?
Or is it Patrick Leahy?
Jeffrey Lord is the author of The Borking
Rebellion. A former Reagan White House political director, he
writes from Pennsylvania where he is the president and CEO of
QubeTV, an online conservative video company.
