Old blowhards don’t fade away, we learned again last week, they just serve as Democrats on the Senate Judiciary Committee.
It was almost two decades ago that Sen. Joe Biden (D.-Del.) chaired the confirmation hearings that gave America a new verb: to Bork. When President Reagan nominated U.S. Appeals Court Judge Robert Bork to the Supreme Court, it was Biden who led his Democratic committee colleagues Ted Kennedy of Massachusetts and Patrick Leahy of Vermont in what was then the unprecedented trashing of a nominee of unquestioned professional qualifications and unblemished character.
In 1991, in a committee still chaired by Biden and with Kennedy and Leahy still members, the Democrats conspired in the vulgar, attempted “high-tech lynching” of Supreme Court nominee Clarence Thomas.
In President Bush’s first term, it was still Biden, Kennedy and Leahy—now joined by their younger partners Chuck Schumer of New York and Dick Durbin of Illinois—who worked relentlessly to use Judiciary Committee hearings to set the stage for the Democrats to filibuster any constitutionalist appellate court nominee who appeared to be a potential Supreme Court nominee.
Their strategy was transparent. They would attack nominees personally and scurrilously to create a climate of intimidation, hoping either to frighten highly qualified constitutionalists away from accepting a Supreme Court nomination or deter President Bush from naming such a person. They also hoped the filibuster of Bush’s judicial nominees would energize their left-wing political base during the 2002 and 2004 elections cycles.
The electoral strategy backfired. Republicans regained control of the Senate in 2002. President Bush retained the White House in 2004. In both elections, it was Republicans who successfully used the courts as an issue. And in 2004, South Dakota voters threw from office the architect of the Democratic judicial filibusters, Senate Minority Leader Tom Daschle.
Nonetheless, the Democrats almost succeeded in their intimidation strategy. First, President Bush named a highly qualified stealth nominee, John Roberts, to replace William Rehnquist as Chief Justice. Then, he nominated a highly unqualified stealth nominee, White House Counsel Harriet Miers, to replace Associate Justice Sandra Day O’Connor.
But when grass-roots conservative opposition forced Miers to withdraw, the tide turned.
Judge Sam Alito was no stealth nominee. He was both highly qualified and philosophically defined.
He went into last week’s confirmation hearings with a paper trail 25 years long. In memos from his time in the Reagan Administration and in opinions from his 15 years on the U.S. Court of Appeals for the 3rd Circuit, Alito had made clear that he was a conservative who ascribed to an originalist interpretation of the Constitution. In 1985, in an application for a job in the Reagan Justice Department, he had flatly declared that the Constitution did not create a right to abortion. As a judge on the Appeals Court, he had ruled that the Commerce Clause did not allow the U.S. Congress to regulate the wholly intra-state possession of a machine gun, and that a public school student could bring a poster of Jesus to school and hang it in a hallway as his example of what he was thankful for at Thanksgiving.
The stage was set for a massive philosophical clash in the Judiciary Committee.
The Democrats, if they wanted to, could have turned the Alito confirmation into a referendum on their vision of the Constitution vs. the real Constitution. They could have used it as an opportunity to demonstrate faith in their alleged belief that Americans really want an activist Supreme Court that prohibits prayer in public schools, declares illegal aliens have a right to go to those schools and gives local governments the power to seize private homes to hand over to private developers.
But this was not to be. For the ancient smear brigade of Biden, Kennedy and Leahy, the big issues were why Alito failed to recuse himself from a case involving the Vanguard company (explained in the story below by Sen. Orrin Hatch) and why Alito could not remember the membership he admitted to having 21 years ago in a group called the Concerned Alumni of Princeton (CAP).
The defining moment in Teddy Kennedy’s long post-Chappaquiddick career as the world’s most notorious unintentionally ironic scandal-mongerer may have come when Senate Judiciary Chairman Arlen Specter of all people called Kennedy’s bluff on his CAP witch hunt. When Kennedy last Wednesday, suggesting Alito had lied about the extent of his involvement in CAP, insisted he would call for vote after vote to force Specter to close the nationally televised hearing so the committee could vote to subpoena CAP records controlled by former National Review Publisher (and CAP founder) Bill Rusher, Specter stuffed a cork into the blowhard. “I’m not concerned about your threats to have votes again, again and again,” said Specter. “And I’m not going to have you run this committee and decide when we’re going to go into executive session.”
Specter soon secured the gracious permission of Bill Rusher for committee lawyers—including “representatives of Sen. Kennedy”—to examine CAP’s records without a subpoena. Until the wee hours, they feverishly sifted through the archived checks, correspondence, contributors’ lists and old publications. “Judge Alito’s name never appeared in any document,” Specter announced the next morning.
Were Kennedy and his smear brigade shamed by the episode? Not a chance. They have no shame.
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