Let the Borking Begin

A brilliant federal appellate court judge widely recognized for his legal scholarship is nominated to fill the second vacancy on the U.S. Supreme Court by an anti-abortion Republican president who had pledged to appoint conservative “strict constructionists”–judges who would interpret and not legislate from the bench.  

Rather than admit that they oppose him on ideological or philosophical grounds, special interest groups and liberal Democrats would instead choose the low road.  Lamenting that they had allowed the President’s earlier nominee for chief justice to sail through confirmation with little controversy, this time they decide to engage in a smear campaign.

First they examined his judicial record looking to see which cases they could distort and misrepresent to the American public.  They argue that if he joined the Supreme Court he would roll back the clock on minority and women’s rights.  When that fails they would regroup and attack his ethics using an old allegation involving a conflict of interest.  

Historian David McCullough reminds us that a “nation that forgets its past can function no better than an individual with amnesia." Although in this case the year was 1969, the brilliant judge was Clement F. Haynsworth, Jr., and the President was Richard M. Nixon, McCullough’s admonition rings true.  Instead of abortion, then the issue that senators and activists groups were focused on was civil rights.  Led by Senator Birch Bayh of Indiana, a cadre of Senate Democrats worked hand in glove with special interest groups to organize the first “borking” of a Supreme Court nominee.  

But any fair reading of Judge Haynsworth’s record would show no evidence that he was an opponent of blacks and other minorities.  His actual record involving civil rights litigation was fairly limited involving fewer than a dozen cases and showed no discernible predispositions one way or another.  But for his critics, these facts didn’t matter as they embarked on a concerted effort to misrepresent him as an unrepentant segregationist. 

But that charge alone proved insufficient to torpedo his nomination.  His critics would then pull another arrow out of their quiver; a decades old claim that Haynsworth had ruled in a case involving the Vend-A-Matic Company (a company that he held 3% of shares in). 

Even though a thorough examination demonstrated there wasn’t any ethical impropriety involved whatsoever in the case and in fact the matter had been extensively investigated and resolved well before he would ever be nominated to the Supreme Court, his opponents watched the charge gain traction by repeating it over and over. 

Later, Senator Bayh’s chief of staff, Bob Keefe would confess "to maintain the fantasy that they were unworthy for reasons other than their judicial philosophy, we had to develop other rationales. In the case of Haynsworth, we found that he had a rather loose view of the appearance of conflict of interest." 

Tragically the techniques worked.  The United States Senate would reject Clement F. Haynsworth, Jr., as Associate Justice of the Supreme Court by a vote of 55 to 45.

Today, it’s 2005 and some Democrats and hardliners on the left think the American people are raging amnesiacs who won’t notice the same playbook being used again.  This time the target is Samuel Alito, the brilliant federal appeals court judge nominated this week by President Bush to replace Justice Sandra Day O’Connor. 

And once again, rather than admit that they oppose him solely based on his “judicial philosophy” his critics have attempted to distort his judicial record.  And apparently having failed at mischaracterizing his views as extreme on issues involving religion and abortion they have decided to play the ethics card.

Today’s charge is conflict of interest based on a case Judge Alito participated in back in 2002.  In that case, a losing plaintiff complained after a three judge panel (which included Judge Alito) unanimously issued an opinion favoring the Vanguard Group Inc. The claim was that Judge Alito should not have participated in the decision since he owned shares of the firm’s mutual funds. At the time, Judge Alito said he believed he had done nothing improper and in fact the Administrative Office of the U.S. Court even advises that judges aren’t required to disqualify themselves from cases involving their mutual-fund management companies. 

But after a rehearing petition was filed the case was reheard by a new three judge panel.  And guess what?  The new panel unanimously issued an opinion which was almost word for word a repeat of Judge Alito’s original ruling.  Now this should have demonstrated to all but the most close-minded that the complaint was unwarranted.    Yet now, in the wake of his nomination to the Supreme Court a whisper campaign has started suggesting that this issue should be reexamined.

History is unlikely to repeat itself.  Unlike 30 years ago, a smear campaign against a Supreme Court nominee based on falsehoods and misrepresentations won’t work today.  Information can’t be strategically disseminated to collaborators at three news networks (ABC, CBS, and NBC) and a few major papers and still be considered comprehensive like it could then.  Today news is distributed 24/7 by cable networks like Fox Cable News and MSNBC.  Combined with the research skills of bloggers and the ubiquity of talk radio, falsehoods can be easily responded to and dismissed.   

Notwithstanding the antiseptic benefits of the internet and multiple resources for news and information, distortions can still affect the Supreme Court confirmation process.  Why?  Primarily due to one key failing: the quest to make ideology the sole talisman of fitness to serve on the United States Supreme Court.  Rather than temperament, legal skill or character–increasingly judicial philosophy alone is what critics and opponents of the nominees to the Court are pursuing. 

In addition to turning a vacancy on the Court into the equivalent of a national political campaign–something the framers would never have expected–it has promoted the selection of so called “beyond reproach” stealth nominees to such a constricted and stilted degree members of the Supreme Court have become less and less representative of America at large.  Is it any wonder then that these individuals yield to the temptation to rule over us rather than between us?

Back in 1969, the smear tactics worked against Clement Haynsworth’s nomination.  Ultimately he would return to the 4th circuit court of appeals after his defeat in the Senate but it would take nearly two decades to rehabilitate his reputation.  

Haynsworth’s legacy however would be the culmination of an elaborate process – the creation of the political “reverse hate crime.”  This “reverse hate crime” forces all once and future Supreme Court nominees to run a gauntlet of intrusive and sometimes destructive processes solely created to ascertain and assess a judge’s internal judicial philosophy.   But unlike a court of law where the accused is innocent until guilty, here Senators, activists, members of the media and other duly deputized agents are allowed to undertake any and all measures necessary to pin down a nominee’s philosophy in order to prove they are unfit to join the Court. 

It would began nearly two decades before President Ronald Reagan nominated legal scholar and judge Robert Bork to the Supreme Court and it has evolved to the point that it now encompasses intrigue, political strategy, active involvement by outside interest groups and scrutiny beyond which many nominees find too great to bear–indeed it is the modern Supreme Court confirmation process.  Although Judge Alito will likely pass through this gauntlet, only history will be the judge of whether it can ever be brought under control.