Judge Brett Kavanaugh is the new Judge Brooks Smith.
What’s happening to Judge Brett Kavanaugh — who, for the record, I do not know — recalls the confirmation battle over now-Third Circuit Court of Appeals Chief Judge Brooks Smith in 2001-2002. And as I discovered, the confirmation process itself has been corrupted by Senate Democrats and their special interest allies.
As a young Reagan political aide — and a non-lawyer — I wound up working on five Reagan Supreme Court nominations. That would be Rehnquist for Chief Justice, Scalia, Bork, Douglas Ginsburg, and Anthony Kennedy for Associate Justice.
In 2001, well out of government, I received a phone call from my best friend, Brooks Smith. Brooks and I met as classmates at Franklin and Marshall College. Brooks, appointed by President Reagan as the nation’s youngest federal judge, was then serving the Western District of Pennsylvania as Chief Judge. Brooks called me to say he was going to be nominated for the Third Circuit and, he was told, President George W. Bush would personally call him on the morrow to tell him.
The next day was September 11, 2001. Suffice to say, the presidential phone call never happened. Of all the results of 9/11, one that escaped media attention quite understandably was that the White House, which normally would have been closely following the fate of its judicial nominees, was now well-occupied with a literal war.
Thus it was that Judge Smith had called to his attention a staffer for the International Judicial Relations Committee, the latter a part of the administrative bureaucracy of the federal judiciary, well outside the White House. He was now under attack by left-wing special interest groups.
The kind of judge he had sought all his life to be — fair, balanced, by-the-Constitutional book — was now being wildly misrepresented on the Internet.
I was not a lawyer. But by the chance of life I had worked on those five Supreme Court nominations, including what had by then had become the infamous Bork nomination. I knew in a blink that Brooks Smith was about to be “borked.” One newspaper report listed 27 left-wing groups organizing a campaign to defeat him. With the White House occupied I asked him for the names of two of his lawyer friends in Pittsburgh. We had to organize — quickly — and fight back at what I was certain was coming. He was doubtful, saying “I’m not Robert Bork.” To which I replied: “They can make you Robert Bork.” He gave me the two names.
One name led to another and another. Like Brett Kavanaugh today, Brooks Smith had tons of friends in and out of the legal community who had dealt with him repeatedly and had total confidence in his integrity. They were Republicans, Democrats, conservatives and liberals. Interestingly the liberals in the group had their own sources within the anti-Smith interest groups. Prominently, many were women attorneys. All were incensed about the game suddenly being played with Judge Smith’s reputation. Our group grew and grew.
I took notes as events unfolded. The notes became a book in 2005, The Borking Rebellion: The Un-Told True Story of How a Bipartisan Group of Pennsylvania Women Attorneys Took On the Entire U.S. Senate Judicial Confirmation Process — And Won. Among my discoveries?
- Left-wing lobbyists wrote both the oral and written questions of Democratic Senators to Judge Smith. Example? Of Wisconsin Senator Russell Feingold’s 28 written questions submitted to Brooks, the Judge’s law clerk discovered, 21were matched, in some cases word-for word, with material supplied by the Community Rights Counsel (CRC) and the Alliance for Justice (AJ) — material which we had obtained via a liberal member of our group. Feingold’s oral questions also came straight from the CRC. When the comparisons were done with the written questions from all the Senate Democrats on the Judiciary Committee, some version of this was true with questions from Senators Patrick Leahy Maria Cantwell, and Ted Kennedy.
- Chief Justice Rehnquist, two years earlier, had his staff directly contact the Washington Post to complain about a “partnership” between the paper and the CRC.
- Senator Feingold requested an opinion on Judge Smith’s ethics from NYU Law School Vice Dean Stephen Gillers. Curiously, the Washington Post relied on Gillers as well, in its very first story on Brooks identifying Gillers merely as a “professor of legal ethics at New York University Law School.” Gillers was presented as a non-partisan ethics expert. Curiously not mentioned by either the Senator or the Post was that the CRC had issued a 2000 report attacking judicial seminars titled “Nothing for Free.” I got a copy. The very first sentence read: “The authors are indebted to… Steven Gillers [sic] (who) reviewed earlier drafts and provided unique and unfailingly helpful advice on improving the final product.” In other words, as I noted in my book, the Post used “CRC research to criticize Brooks, then used CRC consultant Gillers to verify that an ethics breach is potentially ‘present.’ Gillers was never identified as a CRC consultant, presented instead as a disinterested third party expert on legal ethics.”
- On the day of the Smith hearing, I had prepared a press release to put on the press table. As I started to do so a Senate Democratic staffer snapped to me that “this will not be allowed” — and confiscated them. Not so with press releases from liberal groups, made available to all press. We were forbidden to talk to the press — while the CRC lobbyist mingled and chatted with them. A liberal in our Smith group recognized a lobbyist he knew for the liberal Alliance for Justice and went over for a chat. To his astonishment the lobbyist explained that her job was to stand in the back of the room and give signals to Senator Feingold as the latter filled in for then-Chairman Pat Leahy, who had another obligation. She would give these signals by walking around, her presence in or out of the hearing room, physically signally the interest group’s approval or disapproval of the proceedings to Senators and staff in the front of the room.
- Who funded the CRC? As I discovered, the group had received $50,000 from the George Soros “Open Society Institute” for a project to “protect judicial independence.”
- Brooks Smith was raised a Lutheran. He had married the love of his life, who was Catholic. Always deeply religious with a love for pondering the theological, in 1996 he decided to convert to the Catholic faith. Important to Brooks, yes. To the outer world? Who would care? Answer? New York Senator Charles Schumer. Schumer wrote three rounds of questions, with each round more insistently insinuating that the Judge’s Catholicism was a serious problem.
In the end? Smith was confirmed.
There is much more about the behind-the-scenes stories of the Smith appointment. But suffice to say Judge Smith, who today is the Chief Judge of the Third Circuit Court of Appeals, has served since his appointment with honor, dignity, and integrity.
At the end of it all, Karen Smith, the Judge’s wife, said to me something that no doubt Mrs. Brett Kavanaugh is right about now understanding vividly. Said Mrs. Smith to me of the interest groups that came out of nowhere to smear her husband: “These are people who have no faces. There is no identity to these people. They take one shred of what they think is ‘evidence’ and try and destroy you. This isn’t fair to good people. It doesn’t matter what party you are.”
The other day, Supreme Court Justice Ruth Bader Ginsburg, the Court’s famously liberal Justice, observed of the Senate confirmation process:
The vote on my confirmation was 96-3, even though I had spent about 10 years of my life litigating cases under the auspices of the ACLU. No senator asked me any questions — not about that.…Think of Justice Scalia, who’s certainly a known character in, what was it? 1986. The vote was unanimous, every Democrat and every Republican voted for him. That’s the way it should be, instead of what it’s become, which is a highly partisan show. The Republicans move in lockstep, and so do the Democrats. I wish I could wave a magic wand and have it go back to the way it was.
Justice Ginsburg is right. I would go further. Based on my experience and research, the entire Senate judicial confirmation process has become corrupted with a capital “C.” Liberal special interest groups, as I learned firsthand, write the research and questions for liberal Senators — who then submit those questions verbatim directly to the nominee. Ditto can this be true of the media, as with the Post’s relationship with the CRC. And everything — the nominee’s religion included — can and will be used against him or her. Now make no mistake. Liberal special interest groups of the moment are controlling Democratic Senators and their actions on the Kavanaugh nomination.
It is time. More than time, for demands of transparency to be made with these Democratic Senators of the moment. Here’s just one question.
How many questions, both written and oral, to Judge Kavanaugh from Hawaii’s Senator Democratic Sen. Mazie Hirono were written by liberal interest groups and not Senator Hirono? Documents from all concerned should be presented to the Senate — and the public.
In sum? Yes, what is being done to Judge Kavanaugh is a disgrace. But sadly it isn’t the first time. And unless the Senate gets its act together and does something about this thoroughly corrupted process, it won’t be the last.
Judge Brooks Smith