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.