Friday, June 26, 2009

Old Confirmation Wars Fueling Some Critics Now

Judge Robert H. Bork lost his battle for confirmation to the Supreme Court in 1987. (Dude makes Scalia look friendly.)

Miguel Estrada’s appeals court nomination failed in 2003.

Court Nominee Criticized as Relying on Foreign Law

Conservatives who oppose the confirmation of Judge Sonia Sotomayor to the Supreme Court can quickly list their criticisms of her record. But the fervor with which some of those criticisms have been hurled may not be just about Judge Sotomayor. Those emotions, say people who have followed the confirmation wars, are often fueled by the sense of grievance among conservatives and Republicans who say their judicial nominees have been treated unfairly and, sometimes, disrespectfully.

Richard A. Epstein, a noted libertarian-conservative scholar at the University of Chicago, said he had concluded that the case against Judge Sotomayor was thin but that it was energized by the anger over the treatment of past conservative nominees like Robert H. Bork, who lost his confirmation battle in 1987, and Clarence Thomas, who was narrowly confirmed four years later.

“There’s no question that those hurts remain powerful today,” Professor Epstein said in an interview. “And there’s no question that Breyer and Ginsburg were never subjected to anything remotely like that,” a reference to Justices Stephen G. Breyer and Ruth Bader Ginsburg, the last two Democratic nominees, both of whom faced relatively easy confirmation proceedings.

It has been ugly. Yet if Breyer and Ginsburg got in easily, why is Epstein complaining? Republicans had their chances, and chose to go easy on them.

The Limbaugh and Gingrich comments provoked a small backlash from some Republican senators who, by and large, have been more muted in their criticisms of Judge Sotomayor.

Because of political calculations Congressional Republicans, who have to run campaigns, have not gotten shrill or abusive: the party needs Hispanics.

Neomi Rao, a law professor at George Mason University who worked on judicial nominations for Mr. Bush, said Mr. Bush “should have gotten to name the first Hispanic justice on the court.”

“He really wanted to do so,” Professor Rao said. But she said that he was largely stymied when Democrats blocked Mr. Estrada from going on the appeals court.

That's politics.

Democrats have their own grievances, notably a failure of Senate Republicans to consider a group of appeals court nominees during the Clinton administration. That group included Elena Kagan, who became the dean of Harvard Law School and is now solicitor general in the Obama administration. Senator Charles E. Schumer, Democrat of New York and a principal organizer of the strategy to use filibusters to block Republican appeals court nominees, has argued that it was needed because Republican presidents have tried to choose ideological nominees to move the courts rightward, while Democrats have been less concerned with their nominees’ judicial philosophy.

The tit-for-tat has been going on for decades. There is institutional memory on each side, Senators passing on to new colleagues the inside dope, the resentments, the battle plan, the tactics. It is ongoing.

Charles J. Cooper, a Washington lawyer who was a senior Justice Department official in the Reagan administration and involved in the Bork battle, lamented what he said was the degradation of the confirmation process.

Agreed, though this commentators is hardly an impartial observer.

The beginning, Mr. Cooper said, was doubtlessly the Bork confirmation battle in which the tools, sensibilities and ethics of modern political campaigns were in play as critics accused Judge Bork of being out of the mainstream on issues like civil rights and women’s rights.

It might have begun then, yet the Democrats had little power during the ascendancy of Reaganism; fighting Bork was one of the few things they could do to defend their side of the equation. I do recall the Bork fight being intense and getting ugly, but to blame the Democrats is too easy.

“That’s when things changed qualitatively,” he said. “And unfortunately it contributes to the public grasp of the courts as political institutions.”

Aside from the condenscension toward the public, it is disingenious to charge that politics never before entered into choosing Justices.

The sense of grievance is reinforced by events like an annual picnic hosted by the Federalist Society, a conservative group, for student leaders at the home of Theodore B. Olson, a Washington lawyer. The young conservatives, participants say, are able to gaze at guests like Judge Bork, Mr. Estrada and Justice Thomas, who are regarded at those events as something akin to living martyrs.

Sounds a brainwashing session, or, perhaps better said, a meeting of the minds, as much as anything else: the grievances are passed on by the old bulls to the new generation who carry on the battle and the sense of having been mistreated.

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