An alert this week from backers of Judge John Roberts cautions not to take seriously Democratic complaints that they cannot stop his confirmation. A three-page memo sent to thousands of conservatives across the country warns that the assault on President Bush’s first Supreme Court nominee is yet to come. A major reason cited for this belief is the man back at Sen. Edward M. Kennedy’s side on the Senate Judiciary Committee: James Flug.
"It is hard to fathom Mr. Flug coming back to Capitol Hill after 30 years of private practice for anything other than a bitterly tough confirmation fight," says the memo, signed by three prominent Roberts backers. That argument is based on Flug’s 38-year intermittent history as Teddy Kennedy’s gunslinger. Not contained in the memo is Flug’s clandestine activity since his return investigating at least one Bush judicial nominee, Appellate Judge William Pryor.
The Kennedy-Flug partnership blocking confirmation of Republican judges dates back to the defeat of President Richard Nixon’s Supreme Court nominees G. Harrold Carswell and Clement F. Haynsworth. As Kennedy’s rhetoric intensifies, the atmosphere leading up to next month’s Roberts hearings feels like the eve of battle.
I had known Flug while he was a Kennedy aide in the late 1960s and in Kennedy’s 1980 campaign for president. He returned my call last week, and I asked why Flug, now aged 66, would return to a job normally filled by somebody 30 years younger. When he learned what I was after, Flug broke off the conversation and said he would resume the next day if he could. He never did.
I did not even get a chance to ask him about the Pryor nomination, but I talked to several other sources. When Flug returned to Kennedy’s staff two years ago, he was immersed in the Kennedy-led attempt to reject Bush judicial nominees. Alabama Attorney General Pryor, nominated to the 11th Circuit Court of Appeals, was a principal target.
Documents concerning Pryor’s fund-raising as founder of the Republican Attorneys General Association (RAGA) were leaked to Kennedy’s office by a former RAGA secretary who took the documents without permission. Three sources, including one Senate aide, told me that Flug was the Kennedy staffer receiving the purloined material. The attempt to ambush Pryor was ruined when the plan was disclosed in a July 16, 2003, column in the Mobile Register by Quin Hillyer. Kennedy then accused Republicans of leaking confidential information. However, Pryor was one of three appellate nominees who this year was finally confirmed in the "Group of 14" agreement.
After my brief conversation with Flug, Kennedy’s press office said the aide was too busy to talk to me. Over five days of repeated questions about his role in the Pryor confirmation fight, I received no answer. As to why he returned to Kennedy’s staff, the senator’s press aide referred me to a flattering profile of Flug in the Aug. 19, 2003, edition of The Hill newspaper. "It was an extraordinary opportunity to maybe repeat history," Flug was quoted as saying.
The Hill interview did not indicate Flug’s repetition of history when he returned earlier to help Kennedy battle a stiff 1994 re-election challenge by current Massachusetts Gov. Mitt Romney. Flug hired private investigator Terry Lenzner to research Romney, an arrangement that was kept off official campaign reports.
That record is why Flug is mentioned prominently in the memo sent out this week by Leonard Leo (Federalist Society), Jay Sekulow (American Center for Law and Justice) and Edwin Meese (Heritage Foundation). It cites the bitter Clarence Thomas confirmation when Democrats said they had no chance to win before beginning the real assault, warning the same can happen with Roberts.
Kennedy began stepping up his assault on Roberts in an Aug. 19 Washington Post op-ed, questioning whether Roberts "will adopt a cramped and contorted view of our Constitution that will turn back the clock." That sounds like a toned down version of Kennedy’s description of "Robert Bork’s America" as a country of "back-alley abortions" and "segregated lunch counters." Based on the past, has Jim Flug returned to provide ammunition for the senator’s attack machine?