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Tuesday, October 04, 2005

Federalist No. 76

Suddenly it's a big favorite:
To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. ... He would be both ashamed and afraid to bring forward, for the most distinguished or lucrative stations, candidates who had no other merit than that of coming from the same State to which he particularly belonged, or of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure.
Though of course one can choose to quote other parts of the document, as Ronald Cass does here, or quote the above in support of Bush's candidates, as former Solicitor General Theodore Olson did in the Gauer Lecture, from which a column for the NY Sun was drawn:
We have all been staggered these past few weeks by the horror, destruction and widespread tragedy caused by Hurricane Katrina and Rita in the Gulf Coast. Those natural disasters have distracted us from the man-made political storm we have been experiencing in Washington in August and September over the nomination and confirmation of our nation's 17th chief justice. We might well call it Hurricane Roberts. And, while the Roberts confirmation process reached its end without having caused the political chaos many predicted, we know that the next storm is just over the horizon and promises to be even more fierce, savage, and potentially destructive. The entire confirmation process needs to be reviewed and, one would hope, put back into its proper perspective.

John Roberts is one of a very, very few individuals who could manage to navigate the enormous hurdles, pitfalls and land mines placed in his path. He is extraordinarily well qualified, brought to the party an essentially pristine personal history and professional record, and was brilliant, articulate, poised, patient, thoughtful, and gracious throughout 22 televised hours of intense questioning.

Despite all of that, five members of the judiciary committee voted against his confirmation and he received 22 negative votes in the Senate. Imagine what the result might have been if Judge Roberts had manifested even one shortcoming or human frailty during his five decades of living or experienced a single slip-up during the lengthy, televised Senate hearings. One spot of blood in the water and, you can be sure, the story would not be heading for such a successful ending. Absent the discovery of John Roberts's missing Hispanic twin sister, the next nominee can expect a prolonged, unrelenting, no-quarter-given, nostone-unturned, excruciating nightmare, from inside and outside the Senate, and even before hearings begin.

Sometimes the scrutiny reveals pertinent information about a nominee's fitness. When President Johnson named his pal Associate Justice Abe Fortas to succeed Earl Warren as chief justice, it was revealed that Fortas had accepted a $15,000 fee for nine weeks of teaching at a local university, with the funds furnished by the justice's former clients. The nomination, already weighed down by President Johnson's lame duck status, was doomed.

Far more often, the relentless and intrusive digging reveals information that, while perhaps titillating, has no bearing whatsoever on the nominee's fitness for office. One might have thought that the all-time low had been reach in 1987, when the Washington Post published a list of the movies Robert Bork had rented at his local video store. Fortunately Judge Bork had taken out nothing more scandalous than The Sound of Music.

A new, much lower, low was achieved this summer when the venerable New York Times dispatched a reporter to attempt to unseal and to investigate the adoption of Judge Roberts's two children, neither of whom has yet reached the age of 6. One can only imagine what the editor who came up with this assignment was digging for, with visions of Pulitzer dancing in his head.

If a candidate manages somehow to survive the intense media scrutiny and savage attacks the nomination itself unleashes, the actual confirmation process begins. Upon his nomination, Judge Roberts was served with a list of 28 multipart written questions from the Judiciary Committee which required him to provide elaborate details regarding his every employer; business, professional or nonprofit entity with whom he had ever been affiliated; all degrees, honors, awards he had received; memberships, including clubs, working groups, committees, conferences, publications, speeches, remarks, notes, outlines, and interviews; clients, cases, opposing counsel, cocounsel, assisting counsel and positions taken in court; judicial opinions written, unpublished opinions; and on and on.

Then there were the 37,000 pages of his White House and Justice Department writings, every word of which was examined, dissected, taken out of context and analyzed.And more written questions kept coming from the senators. On the evening of Friday, September 16, after five days of televised hearings, and reams and reams of questions and answers, Judge Roberts received 200 additional written questions which required an immediate response.

This was just a prelude to the hearing itself, conducted by 18 senators, each assisted by an eager staff anxious to find a place, however minor, in history. By contrast, a deposition conducted under the Federal Rules of Civil Procedure is permitted to run for seven hours.

One senator asked Judge Roberts what he would do "to right the wrongs revealed by Katrina." One senator asked "to see your feelings as a man. I'm not asking for your legal view." One senator wanted to know whether "life was the opposite of death." And one repeatedly, over several days criticized Roberts for having used the word "amigos" in a White House memo two decades ago, as if that suggested racial insensitivity. As one columnist said, "With enemies like these, who needs amigos?"

The confirmation process doesn't have to be the spectacle that it has become: part survival reality television, part celebrity criminal trial, part actor's workshop. For most of our history it was not like that at all.

There is nothing unique or per se objectionable about the Senate rejecting a president's nomination to the Supreme Court. Since 1789, the Senate has refused to confirm 35 of 155 nominations for the Court. But that statistic is quite misleading. Five of the 35 were simply a second, and in one case, a third rejection of previously rejected nominees. Another five rejected nominees were confirmed after their names were resubmitted. Since 1891, the Senate has rejected only eight of 72 nominees.

But if the occasional rejection of nominees is not new, the time the Senate now takes to administer its dose of "advice and consent" is. Seventy-two days passed between the president's initial announcement of Judge Roberts's nomination to the Supreme Court and his confirmation. This period stands in stark contrast to those of other nominees to the position of chief justice. John Jay was confirmed in two days; John Marshall was confirmed in a week; and Salmon Chase and Edward White were confirmed the very same day they were nominated. In the past, when the confirmation process for those tapped to be chief justice dragged on, it did so typically because one or more senators had a very personal vendetta against the nominee, the president, or both.

But these incidents were the exceptions, not the rule. From the Founding until 1955, the Senate confirmed 99 Supreme Court nominees. The median number of days for those confirmations was six days and the average was slightly less than 13 days (which includes the 125-day limbo in 1916 for Louis Brandeis - in large part because of anti-Semitism toward the Court's first Jewish justice). But since 1955, there have been 21 confirmations, which have taken a median of 50 days and an average of 52 days.

Now we have wall-to-wall televised hearings, where 18 senators get to make repeated televised speeches, and ask questions that demonstrate their mastery of Supreme Court cases, their superior intellect, and their compassion for the oppressed and afflicted. The chance that this beloved practice will ever be abandoned by 18 potential presidents of the United States is less than the odds on that proverbial flying pig.

Many of us would agree that the process has become much too intrusive, politicized, unseemly, and potentially destructive. But what can be done? Without some powerful outside impetus from the public, nothing will change. The process will only continue to get worse, more combative and retributive, until the public stands up and insists that they have had enough. And, unless a few senators who are the worst offenders are defeated at the ballot box.

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