Loose Canons

Fear and Loathing on the Confirmation Trail

In this Senate, "advice and consent" means "politics and buffoonery."

By 11.13.05

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Having sacrificed itself for us on the altar of Rathergate, Jayson Blair, and so many other such travails of journalism, the MSM now claims the right to be our final arbiter of moral authority. Mo Dowd of the New York Times, for example, declaimed that the unglued Cindy Sheehan had "absolute moral authority" to say anything about the Iraq war in which her son gave his life. The MSM would, of course, deny Supreme Court Justice Clarence Thomas's moral authority to argue for changes to the broken Senate confirmation system, even though he survived his 1991 pubic-hair-on-a-Coke-can confirmation. It falls to us to give Justice Thomas his due.

Last Friday, in a speech to law students at the University of Alabama, Thomas said that former clerks and other lawyers often tell him that they aren't interested in being nominated for judgeships because of the "bruising" confirmation process. Thomas argued for a less intrusive and -- inferentially -- shorter process. He added, in words that will surely haunt the Democrats, that "I think we all should be honest with one another that the only issue, the central issue in all of this, is abortion....The whole judiciary now is being held, in a sense, hostage to that one issue." And, to the Senate's utter shame, more than the judiciary is being held hostage to a confirmation process that resembles a Hunter Thompson re-write of Article 2, Section 2 of the Constitution. To the nominee -- and to the president who needs people confirmed in key posts to carry out his policies -- the process has degenerated to little more than fear and loathing on the confirmation trail.

Take Gordon England. After two successful careers in industry he entered public service and -- since 2001 -- has been confirmed first as Navy Secretary, then Deputy Homeland Security Secretary, and then again as Navy Secretary. In May 2005, he was nominated to succeed Paul Wolfowitz as Deputy Secretary of Defense which -- last I checked -- is a non-trivial job.

Having been easily confirmed three times, you'd think England would skate through the process. And you'd be wrong. England immediately ran afoul of the SASCompoops. The Senate Armed Services Committee imposes a rule unknown elsewhere on the Hill or in the executive branch. If you want a job in DoD, and you have a pension from a company that does business with the Pentagon (England has two), you have to buy an insurance policy to cover the value of the pension in the event the company goes broke and can't pay the benefits. Which was no big deal until the insurance company that had been writing those policies decided to raise the price through the roof. The SASC in effect demanded that England purchase the DEPSECDEF job for the tens of thousands of dollars the insurance would now cost. The Pentagon insisted that the rule be lifted, the SASC refused, and there things sat until September when the SASC blinked, and England was about to be confirmed without buying the insurance policy. Enter the RINOs.

First, Sen. Olympia Snowe (RINO-Me) put a procedural hold on England's nomination because she was upset. Not with him, but with the Base Realignment and Closing Commission's findings about Maine shipyards. When that seemed to be resolved, Sen. Trent Lott (RINO-Mars) took a break from blaming his Republican colleagues for everything but the Great Chicago Fire to put another hold on England. England is still acting DEPSECDEF, unable to employ his powerful voice on the Hill and in the media -- as did Paul Wolfowitz -- to help accomplish Defense Department goals. (Anyone not confirmed is kept under wraps to avoid giving offense to the Senators who are holding the nomination hostage.) How long will Lott's hold last? Probably until the president gives England a recess appointment because Senate Republicans don't have the guts to force Lott's hand.

To the Defense Department, and Lord knows how many other executive agencies trying to do their jobs, the Senate's approach is irresponsible, harsh, and unyielding. Which is exactly what the Dems want it to be for judicial nominees. If you didn't see Howlin' Howie Dean on Meet the Press yesterday, you should have.

Dean gave redundant proof of the theory I have been propounding for months: that the opposition party in America is not the Democrats, who are intellectually bankrupt, but the mainstream media. Dean -- when pressed by Tim Russert on the Dems' agenda -- admitted that they don't have one because, not being in control of the House or Senate, they aren't responsible for one. He promised that an agenda would be developed in time for the 2006 elections. (Vote for us: we have a secret plan to save America from conservatives.) Most revealingly, when Russert asked Dean about the Alito nomination, and whether the Dems should filibuster, he recited the guidance the Dems were given Sunday by the New York Times.

A Sunday Times editorial declaimed: "Judge Samuel Alito has been working hard to win over moderate Democratic senators. But just as it would be irresponsible to reject his nomination to the Supreme Court without giving him a full hearing, it is unwise to embrace it -- or rule out the possibility of a filibuster -- until more is known. The Alito nomination is a defining moment for the country, and for the Democratic Party. Given the sharp divisions on the court, the next justice could decide the scope of reproductive freedom, civil rights and civil liberties, and environmental and workplace protections that Americans will live with for years. Although many questions remain to be answered, there is reason to believe that Judge Alito could do significant damage to values Democrats have long stood for." (Emphasis added.)

Russert didn't ask about the Times editorial, but Dean went right to it. He said, "I must say I rarely read editorials and I rarely agree with the ones I read. But the New York Times ran an editorial today which I think is very instructive for the Democratic Party. This could be a defining moment. Judge Alito is a hard-working man, a good family man, but his opinions are well outside the mainstream of American public opinion." Dean continued -- adopting another talking point from the Times piece -- saying that because Republicans denied Harriet Miers an up-or-down vote they had forfeited the right to object to Dems filibustering Alito. (The Dems should just cut out the middle man and run the NYT editorial board for office. Mo Dowd would be a perfect running mate for Hillary in '08.)

The Times is right about the Alito nomination. It is the Dems' defining moment for 2006 and 2008. And the Senate's. The Dems have to try to block Alito because their brain -- the Times -- told them to and because their biggest donors will. By the time the Alito hearings begin in January, every big-money pressure group the Dems answer to will join the MSM in full cry, and the pressure on the Dems to block Alito will be bigger than it has ever been for any Supreme Court nomination, Bork and Thomas included. If the Senate hasn't by then confirmed Gordon England and if the McCain Gang of Fourteen doesn't vote to stop a filibuster of Alito, the Republicans may well lose control of the Senate. And, in truth, they should.

TAS contributing editor Jed Babbin is the author of Inside the Asylum: Why the UN and Old Europe Are Worse Than You Think (Regnery, 2004).

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About the Author
Jed Babbin served as a Deputy Undersecretary of Defense under George H.W. Bush. He is the author of several bestselling books including Inside the Asylum and In the Words of Our Enemies. He is coauthor (with Herbert London) of the new book The BDS War Against Israel. You can follow him on Twitter@jedbabbin.