Dear Senator Kennedy:
As comedienne Joan Rivers used to say: Can we talk????
Those of us who have been calling repeatedly for fundamental reform of what has become a corrupted judicial confirmation process can only read your July 30th op-ed in the Washington Post with astonishment. Most amazingly, after decades of abuse of the process you are now calling for reform yourself.
Having written a book (The Borking Rebellion) documenting the behind the scenes machinations of the Senate Judiciary Committee as viewed through the 2002 nomination brawl over now Third Circuit Judge D. Brooks Smith, I am pleased you have at last spoken to the subject.
Let’s walk through your article.
* “I have had the honor of serving on the Senate Judiciary Committee for 43 years, during which I have participated in confirmation hearings for all the justices who now sit on the Supreme Court….Of course, an examination of a nominee’s views may cause the Senate to withhold its consent.”
Respectfully, I believe there is no lack of a coincidence between your presence on the Judiciary Committee for 43 years and the relentless deterioration of the confirmation process. When President Johnson nominated Thurgood Marshall to the Supreme Court in 1967 you had a considerably different view about Senators asking “probing questions” of the sort you asked both Judges John Roberts and Samuel Alito. You said: “We would have to respect that any nominee to the Supreme Court would have to defer any comments on any matters which are either before the Court or very likely to appear before the Court. This has been a procedure which has been followed in the past and is one which I think is based upon sound legal precedent.”
Bad as your inability to take your own long ago advice is, this particular quote goes right to the core of what your service on the Judiciary Committee has meant. You have become a senatorial role model for saying one thing when the President is of your party and he is nominating liberal Democrats to the bench, then reversing field entirely when the President and nominee are conservatives. While many disagree with your views on Iraq, abortion, or constantly raising taxes, at the very least you are a model of consistency in those and many other areas. Thus your constant 180-degree shifts on the confirmation process stand out as nothing more than bold-faced hypocrisy, counting on the fact that the media will neither remember nor care.
Fortunately, in the course of those 43 years, the media has changed. These glaring double standards are now going to be caught, re-run and re-run again, giving the American public a startling behind-the-scenes view of just how cynical you have been about this process. In the publicity tour for my book I was asked about your conduct on this one issue repeatedly. People thoroughly expected you to ask over-the-top “when did you stop beating your wife?” questions and you did not disappoint. By the time Mrs. Alito fled the Committee hearing room in tears at your insinuation her husband was a racist, you had confirmed the worst suspicions so many Americans have of you on this issue.
* “But the careful bipartisan process of years past — like so many checks and balances in our Constitution — has been badly broken by the current Bush administration.”
Having worked in “the careful bipartisan process” of five Supreme Court nominations as a member of the Reagan White House political team, I would suggest that this process was broken in the summer of 1987 during the nomination of Robert Bork. By you.
Certainly you were well within your rights as a senator to oppose Judge Bork. But, alas, you personally led a successful effort to completely upend the “many checks and balances of our Constitution,” badly breaking the process in ways that have only been exacerbated with time.
As documented in my book, it was you who delayed Judge Bork’s hearing for a record breaking 77 days. Up until this point the average was 14 days. You launched this attack on checks and balances for one reason, which you later admitted to the Boston Globe: to galvanize dozens of liberal special groups so they could induce political mass hysteria designed to slander a heretofore universally well-respected man of considerable legal intellect. You are the one responsible for the first TV attack ad on a sitting federal judge and Supreme Court nominee. You are the one who created the circus-like atmosphere behind Court nominations, allowing an atmosphere where confidential FBI reports with unsubstantiated charges are leaked to favored liberal reporters. You are the one who created the notion that any nominee who once disagreed with a liberal is “out of the mainstream.” You are the one who has allowed these very special interest groups to literally write the questions you and your Democratic colleagues ask or write so ostentatiously to nominees.
Stop here for a moment on this point of questions to nominees. Does it ever strike even a chord of sensibility with you that there’s something wrong when one of your Democratic Committee colleagues — Senator Russell Feingold — submits 28 written questions to a nominee (Third Circuit nominee Smith), and it is later discovered that of those questions all but seven were supplied by two interest groups, sometimes word-for-word? You yourself submitted five questions through the formal system — and three of those were traced back to the same interest groups. Suffice to say, you and Senator Feingold were not alone in this corruption of process, either. Literally, the nominee’s law clerk had to inquire whether the Judge’s answers should be sent to the “Senator” over whose signature the questions were sent or just sent to the head of the interest groups who were really the source of the questions.
* “The confirmation process became broken because the Bush administration learned the wrong lesson from the failed Bork nomination….”
You’re kidding, right? As someone who was involved from the White House end of the failed Bork confirmation, I must say the Bush administration and, almost more importantly, the conservative movement in general, learned exactly the right lesson from the Bork fight. To wit: fight back. Step One of this lesson? Nominate a conservative with a real track record. Step Two: raise our own money, organize our own grass-roots groups and do our own TV commercials. Step Three: Run on this issue to elect even more conservative senators.
All of this was done by the Bush administration — and they succeeded. You, Senator, in breaking the traditional bipartisan process have energized a conservative base that is fired up over this issue beyond belief. In case you don’t believe this, take a look at the Pennsylvania Senate race for Rick Santorum. The Democrat Senate nominee quickly stepped away from you and your Committee colleagues, endorsing both Judge Roberts and Judge Alito. The only way he apparently believes he can win is by portraying himself as conservative when it comes to judicial nominees.
Sadly, when I see you condemn Chief Justice Roberts for opposing the idea of “divvying us up by race” I must say your 43 years on the Judiciary Committee seems not to have gotten either you or your party very far on this issue. “[R]ace has no place in American life or law,” said President Kennedy in his historic 1963 address on Civil Rights. This sentiment, expressed vividly by Chief Justice Roberts in League of United Latin American Citizens v. Perry is the recognition that President Kennedy had it just right.
What is left unsaid in that opinion, and frankly what was left unsaid in President Bush’s recent remarks to the NAACP, is that race is still about “divvying us up” because you and your party, Senator, have made dividing Americans by race a fine political art. For the record, it is your party — not mine — that has supported slavery, segregation, and every form of racial division it is possible to create since the very formation of your party. Democrats from Thomas Jefferson to Andrew Jackson to — yes — John F. Kennedy, were elected because they depended on the votes of a system that both supported and sustained racial preferences in one manner or another. The very fact that America needed civil rights legislation at all in the 1960s is because your party actively sabotaged the same Republican legislation a hundred years earlier — subjecting African-Americans to decades and decades of racial terror for nothing more than political gain.
So what to do about reform? How about resigning from the Senate Judiciary Committee?
Now THAT would be a big step forward in restoring the process that you yourself believe was working when you first took your seat in one of those leather swivel chairs 43 years ago.
Isn’t it time to connect the dots?