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“I gave them a sword.”: The consequences of the anti-Miers movement.

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In his interviews with David Frost, Richard Nixon declared:

“I brought myself down. I gave them a sword and they stuck it in and they twisted it with relish.”

Since the despicable treatment of Judge Robert Bork in 1987, the conservative movement has struggled to restore integrity and decency to the judicial nominatin process, an effort that took on even greater urgency after the savaging of Clarence Thomas in 1991.

Part of that effort involved conducting the confirmation process for President Clinton’s two SCOTUS nominees with the sort of attention to procedural fairness and constitutional design that Republicans expected would be shown future GOP nominees.

Another part of that effort to repair what Yale Law Professor Stephen Carter has called the “confirmation mess” was the approach to nominees adopted by President Bush, including resoluteness over a period of years if necessary in the face of political attacks on nominees.

A third part of the effort to depoliticize the law is the rejection of policital attacks on non-partisan prosecutors, and thus the treatment of Peter Fitzgerald by the right has been the opposite of the grotesque slandering of Dean Starr by the left.

Another part of the process of returning the confirmation process to the point where it could function again has been the stalwart defense of a nominee’s refusal to answer questions that would require him or her to pledge themselves to results in advance of argument, coupled with a refusal to loot every file of a lawyer’s vast archive in the assistance of search-and-destroy tactics of opponents bent on distorting rather than examining a nominee’s credentials.

If the conservatives could hold on long enough, and argue patiently with the public over an extended period of time, the tactics of the left –of “the groups,” and their Democratic senator puppets, could be defeated.

Two rounds of Senate elections were waged in good part on this very ground, and Senators Martinez, DeMint, Dole, Burr, Chambliss, Coleman, Talent, Vitter, and Thune –to name those that come readily to mind– won election on the demand for up-or-down votes for all nominees.

In the face of the left’s still adamant refusal to reform itself, the Senate edged towards the constitutional option, and was close to the moment –long delayed– when the process was going to be fixed when Senator McCain undercut almost two decades of work and the Gang of 14 threw the long march back to first principles into disarray.

The Roberts nomination defeated the left because they couldn’t find traction for their outrageous tactics, even though they tried. If the Senate wasn’t prepared to fix itself and exile the groups or renounce the tactics, the president outflanked them with a nominee of such extraordinary ability that attacks on him were like the proverbial throwing pebbles at a battleship.

The great additional benefit of the Roberts nomination was that it exposed in retrospect the left’s deep unfairness because the new Chief Justice had been unfairly blocked not once but twice by Senate Democrats.

Now, however, a big slice of conservative punditry has decided that the long march back isn’t worth the risk that Harriet Miers isn’t who the president and her close associates say she is. On the basis of a very thin set of papers –some of them distorted, and all of them cherry-picked– and with an absolute refusal to entertain any of the many arguments and testimonies on her behalf, this caucus has seized on the very tactics most conservatives have long denounced in order to do what?

To deny Harriet Miers a hearing and an up-or-down vote on the Senate floor.

To accomplish this objective, a group of high profile conservative pundits and activists have gone so far as to raises hundreds of thousands of doallrs from secret sources to run hit ads on the nominee in prime time. George Will has taken to denouncing high profile evangelical leaders as “crude.” National Review, the oldest brand on the right, allowed its cyber pages to be used to brand the nominee the worst since Caligula’s horse and to suggest the president might send up Barney next. A line from a 12 year old speech is offered as a proof text of the nominee’s views on abortion despite her unequivocal public support for pro-life causes. The answer to a question in a deposition from even farther back is taken as a token of undying hostility to the Federalist Society despite far more recent and powerful praise she has given the organization and the assurances of its executive director and prominent membership that the idea of hostility is absurd.

Distortion, denial, and damning all in the pursuit of the destruction of a nominee before she has uttered a single word to the Senate.

All of the outbursts of the past three plus weeks are precedents, of course, for future conduct in the judicial wars. People for the American Way is gleefully posting National Review editor Rich Lowry’s blasts at Miers, and no doubt filling the files full of blog posts with which to build a case for estoppel the next time this or a future Republican president complains that a nominee isn’t being given a hearing or is having his or her record distorted.

One of the great ironies of this disastrous embrace of the tactics of the left is that it comes only weeks and indeed days after repeated warnings by Justice Scalia of just such abuses. Scalia’s August 30th Madison Lecture at my law school addressed these issues, and he referred to them on MSNBC as well, answering Maria Bartiromo’s question about whether he could be confirmed again with “I don’t know, but I wouldn’t want to go through it today [laughs]. I’ll tell you that much. It has become politicized.”

Yesterday I quoted the Wall Street Journal’s quote from the Cato Institute’s Roger Pilon:

“This woman has demonstrated almost nothing that would indicate she is either one of us or up to the job.” (Emphasis added.)

In reseaching this post, I found Roger Pilon’s forward to the latest edition of Supreme Court Review, wherein he writes:

“The problem with going down that political road, however, is its potential for undermining the rule of law, for turning everything into politics. At the extreme, for example, both the president and the Senate might demand that a nominee pass a so-called ideological litmus test as a condition for being nominated or confirmed — the idea being to try to bind him to deciding future cases in accordance with his answers on the test. Were that approach to prevail — and we are already part way there — the independence of the judiciary would be seriously compromised as judging would no longer be a function of dispassionate and apolitical reason but of nomination and confirmation politics. That political process would determine the legal process, in effect, rendering the latter a sham.”

I cannot reconcile Mr. Pilon’s strong statements against the nominee (though I do not believe he has called for withdrawal prior to the hearings) with this warning, but I also cannot reconcile Judge Bork’s condemnation of her with Judge Bork’s introduction to the new book ke edited and released this summer, or David Frum’s leadership of the new organization attacking Miers with his July 4 description of a potential Miers nomination.

All no doubt have explanations which deserve a careful hearing, of course, and they may even be persuasive.

But I don’t think it is possible to deny that the assault on Miers has given the left a sword of incredible sharpness for use in future judicial battles. The Gang of 14 did incredible damage in May, but it was possible to recover from that set-back because conservatives did not abandon their argument for an up or down vote after a hearing. Now many have. The list of conservatives publicly urging a hearing and an up-or-down vote for Miers is very short indeed. Perhaps that will change.


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