SPECIAL REPORT - Prepping the Nominee
12-11-2004
Special Report - Prepping the Nominee
Stuart Taylor Jr.
(E-mail this
author)
© National Journal Group, Inc.
Veteran
Washington superlobbyist Tom Korologos, now ambassador to
Belgium, had some pithy words of wisdom for past Republican
Supreme Court nominees whom he helped shepherd through the
process: "Your role is that of a bridegroom at a wedding. Stay
out of the way, be on time, and keep your mouth shut."
But one of those nominees, Judge Robert Bork, was in no
position to keep his mouth shut as he went down to a historic
defeat in 1987. Now, with partisan bitterness at a new zenith
reminiscent of the atmosphere surrounding the Bork donnybrook,
even a nominee who does not have a controversial paper trail,
and who tries to keep his or her mouth shut, could be in for a
harrowing ordeal. The Republican gains in the Senate would be a
great help to anyone President Bush named. But the path to
confirmation would still be littered with political and ethical
traps.
Liberal interest groups and Senate Democrats
have copious dossiers on the public and private lives of all
those thought to be on Bush's short list. Once announced, any
strongly conservative nominee will be greeted with blizzards of
alarmist press releases and (probably) newspaper and TV ads
depicting him or her as a right-wing extremist. Sen. Edward
Kennedy, D-Mass., set the standard for demonizing nominees the
day President Reagan announced Bork's nomination: "Robert Bork's
America is a land in which women would be forced into back-alley
abortions, blacks would sit at segregated lunch counters, rogue
police could break down citizens' doors in midnight raids,
schoolchildren could not be taught about evolution," and so
on.
Then comes the hard part: long questionnaires
fishing for controversial views, ethical problems, or evasive
answers that could be used to discredit the nominee. Courtesy
calls to individual senators accustomed to having their egos
stroked. And finally, the all-important testimony to the
Judiciary Committee, with critics firing spitballs, supporters
pitching softballs, and senators of all stripes pushing the
nominee to disclose his or her views on abortion rights, privacy
rights, gay rights, disability rights, states' rights, property
rights, affirmative action, school prayer, the Pledge of
Allegiance, the death penalty, international law, tax money for
religious schools, assisted suicide, and more.
Even
the nominee's religion and grooming habits can be grist for
opponents, as Bork learned when Sen. Howell Heflin, D-Ala.,
sought to sell his "no" vote to his conservative constituents by
suggesting that Bork might be "an agnostic or an unbeliever."
Heflin also made innuendoes about Bork's widely lampooned,
somewhat scraggly beard; worried Republican senators had urged
the White House to shave it off before the hearings.
If past practice is any guide, administration officials and
other confirmation-team coaches will show videotapes of past
hits and flops to any Bush nominees for the Supreme Court. "We
were brilliant," recalls a participant in the coaching of
then-Judge David Souter in 1990. "We showed him the Bork tapes
and said, 'Don't do that.' Then we showed him the [Anthony]
Kennedy tapes and said, 'Do that.' "
Souter was such
a good learner that tapes of his own confirmation testimony were
later played as a model of smooth sailing for Stephen Breyer, a
Clinton nominee, with the Bork tapes once again serving as the
cautionary example of what would not sell in the circus-like
political arena that the confirmation process had become.
While Bork, a hero to conservatives, went down 42-58,
Kennedy was confirmed a few months later by a 97-0 count, mainly
because he seemed (and was) far more moderate politically and
also because Democrats had no stomach for another Armageddon.
But the contrasting confirmation-hearing performances of Bork
and Kennedy also help explain the dramatically different
outcomes.
Korologos, and then-White House Counsel
A.B. Culvahouse, as well as others who fought for the
nomination, express nothing but admiration for Bork's intellect,
integrity, and wry sense of humor. But they say that political
savvy was not the nominee's strong suit. A former Yale law
professor and solicitor general accustomed to arguing fine
points of law, Bork came across as too smart. He was abstract,
austere, intellectual, and more fixated on the Framers' original
intent -- as he believed judges should be -- than on the human
condition. "He was the Einstein of the law," recalls Korologos,
who worked pro bono on the Bork confirmation team. "He was
smarter than all of them, and he came across that way. He didn't
come across as a schmoozer in any of the courtesy calls, and
even in the hearing, he just came across too stiff. And they
branded him wrongly as a racist, and [Senator] Kennedy got after
him, and it scared people."
Korologos and Culvahouse
alike confess to feelings of guilt for having deferred too much
to this "intellectual giant," as Culvahouse calls him, and for
failing to insist that Bork submit to the rigorous preparation
for political combat that has become routine for other nominees.
"It was my single greatest regret in the White House,"
Culvahouse says.
"There was a first 'murder board,'
or mock hearing, that occurred at the Old Executive Office
Building," he recalls, "and it seemed like every smart lawyer in
the administration fought his way into the room.... It was a
disaster -- just too many lawyers showing off, trying to
convince Bob Bork that they were almost as smart as he was....
No one was in charge. There was a little bit of sharp elbows
between Justice and the White House, and everybody wanted to be
involved.... And at the end of that, he found it very
distasteful and not productive, and decided that his preparation
was going to be much more private," Culvahouse says.
"What we should have done from day one is say, 'This is not
preparation for a Supreme Court argument. This is preparation
for a political knife fight. And it is very different. It's an
art form that you don't understand -- there's no reason that you
should -- and we do, and you need to work with us on this,
because it is as much theater as substance.' "
After
that first meeting, where "people were shouting and nothing was
getting done," Bork recalls, he huddled with six or seven close
advisers more expert at law than at politics, instead of getting
White House political coaching. The advisers included the
fervently conservative William Bradford Reynolds, then a top
Justice Department official, and superlawyer Lloyd Cutler,
Bork's leading Democratic supporter. This inner circle spent
many hours going over Bork's writings and the questions that
could fairly be raised about them. But fair questions were not
the ones for which Bork most needed to be prepared.
Recalls Korologos, a nonlawyer who sat in on meetings of this
group in Bork's kitchen and elsewhere: "All these characters
would sit around and go, you know, the Wainwright case and the
Cohen case and the Oomph case. Pretty soon, my eyes would glaze
over at this brilliance that was going on around me. What I
should have done was grabbed those guys by the lapels, rammed
them against the wall, and said, 'OK, now shut up and listen to
me. Here's how we're gonna do it. Here's how you answer this.
Here's how you answer that. I'm not asking you to give a
position, but your answers are too convoluted.' ... Bork scared
us. He was so smart. He scared me, he scared [Reagan Chief of
Staff] Howard Baker, he scared all of us into thinking that he
was so good that he would be brilliant in the hearing. And that
brilliance just didn't come through. And it finally did us
in."
'An Idiotic Thing to Say'
Bork's main confirmation problem was his very public paper trail
of forceful attacks on decades of major Supreme Court precedents
-- not least Roe v. Wade -- as illegitimate, "toxic detritus of
non-originalism [that should be swept] out to sea," as he put it
in a speech three months before his nomination. Trying to duck
questions was not an option. "I couldn't keep my mouth shut. I'd
written too much," Bork told National Journal.
To the
extent that Bork stuck by his prior statements, Democrats could
paint him as an agent of radical change. To the extent that Bork
tried to qualify or soften his paper trail, Democrats accused
him of disingenuous "confirmation conversions." But as a
political matter, the problem with Bork's testimony was not
disingenuousness. It was his extraordinary candor and his
aversion to pandering. Time and time again, Bork flubbed
opportunities presented by supportive Republicans such as Sens.
Alan Simpson of Wyoming and Orrin Hatch of Utah. When Simpson
asked why Bork wanted to be a Supreme Court justice -- a
predictable question that other nominees have knocked out of the
park -- Bork said nothing about protecting rights, nothing about
advancing justice, nothing about helping the world's victims.
The gist of his response was, "It would be an intellectual
feast." This, recalls one adviser, "was not the answer." Not
when speaking to a television audience accustomed to politicians
pandering to people's emotions. Not when the professorial
nominee's only hope was to show some human feeling.
Asked to comment on this assessment, Bork says: "I don't claim
that I performed brilliantly in a political way. I did make some
blunders, and that final answer about 'the intellectual feast'
was an idiotic thing to say. But none of my advisers suggested
that I change anything or behave more politically."
When another supporter lobbed a softball about judges'
responsibilities to protect society against criminals, Bork
struck out. "I am not an expert on criminal law," said the
nominee whom the White House was advertising as an expert on
criminal law -- and a tough-on-crime tiger, to boot. This,
recalls Culvahouse, came at a time when "our polling was showing
that's where we could maybe get some traction going. It was just
political malpractice."
Says Bork: "I could have gone
back and expanded on the criminal-law business, but nobody said
anything about it. And furthermore, criminal law shouldn't be an
ideological matter. I wasn't going to go in with an attitude
that I was out to go get those criminals."
Then there
was the long debate about constitutional interpretation that
Bork had with Sen. Arlen Specter of Pennsylvania, a moderate
Republican whose vote was thought to be up for grabs. (The same
Specter will likely soon be chairman of the Judiciary
Committee.) "He and Specter went round and round like two trains
in the night," Korologos recalls. "Finally, I told him one time,
'For heaven's sake, would you stop arguing with Specter? Why
don't you just say, "That's a fascinating point you have made. I
hadn't thought of it quite in those terms." ' " (Bork does not
recall this advice.) When Specter's long, long, non-question
questions resumed, Bork strove mightily to seem fascinated --
but "then he starts arguing with [Specter] again," Korologos
recalls. Along the way, Bork lost Specter's vote, killing
whatever chance he still had.
Looking back on the
battle, Bork says, "The fact is, I was the tipping point for
that Court, and that was what shot everything up in the air.
Everyone knew I would be the fifth vote to overturn Roe v. Wade.
Indeed, I would have been the fifth vote.
"It's true
that I was unprepared for what you call a political knife fight,
but so were all my advisers. They weren't prepared for it,
either. You really can't overlook the effect of that political
campaign [by opponents to paint Bork as a right-wing zealot].
Full-page ads, radio and television ads with Gregory Peck. There
was no answer from my side at all. My wife and I called a
meeting, and we explained that the other side was running a
national political campaign."
The Borks wanted the
White House to mount a counter-campaign, with Reagan going on
national television to back his nominee. But White House
officials, including the moderate Howard Baker and Culvahouse,
nixed the idea. They doubted that Reagan could swing enough
Senate votes to justify investing more political capital in a
nominee whom Brad Reynolds and other conservatives at the
Justice Department had fervently championed all along.
Bork still believes that "with a proper campaign [by the White
House] and a little more savvy on my part, it could have been
carried." Instead, "the one thing the White House did do after
the hearing was try to get me to go on Barbara Walters with my
wife to humanize myself. And I refused to do it, because I
thought that was preposterous."
By contrast with
Bork, Anthony Kennedy was an adept schmoozer when making
courtesy calls and "smooth as he could be" when testifying,
recalls one of his handlers. (It also helped that Kennedy's long
paper trail of opinions and speeches as a federal appellate
judge was as bland as Bork's was inflammatory.) The White House
put Kennedy through prolonged mock hearings to prepare for every
curveball that any Judiciary Committee member could ever throw.
The first Bush administration used the same techniques for the
nominations of David Souter in 1990 and Clarence Thomas in 1991,
and the Clinton administration used them to help Ruth Bader
Ginsburg in 1993 and Breyer in 1994.
"The process
forces the nominee to jump through hoops," Justice Thomas has
recalled. "You've got to be bland. You've got to round the edges
out.... You have to avoid showing passion.... In the hearing, I
played by the rules. And playing by those rules, the country had
never seen the real person. There is an inherent dishonesty in
the system. It says, 'Don't be yourself.' If you are yourself,
like Bob Bork was, you're dead."
Thomas -- quoted in
a 1994 book by his friend and patron, former Sen. John Danforth,
R-Mo., about Thomas's own circus-like confirmation hearings --
said he had maintained "core honesty." Critics, on the other
hand, accuse Thomas of lying repeatedly to conceal his views
from the television audience -- if not from senators familiar
with his highly controversial paper trail -- on the many big
issues on which Thomas has turned out to be at least as
conservative as Bork.
How Far Should They Go?
Be that as it may, nominees face ethical as well as political
hazards when senators demand to know their views on issues that
they could encounter on the Court. No senator is likely to ask
anything as bald as, "Will you promise to overrule Roe v. Wade?"
But in an era when the justices have the last word on a vast
array of major national issues once thought to be the province
of elected officials, senators are understandably eager to come
as close as they can to learning a nominee's probable votes on
those issues. There is broad agreement among officials and
ethicists that no judicial nominee should explicitly or
implicitly promise to rule in a certain way on any specific
issue that might come before his or her court. Such a promise
would violate the nominee's duty of impartiality to future
litigants and thus would logically call for recusal in any cases
that raise the issue. It would also do violence to the
separation of powers by allowing the legislative branch to
compromise the independence of the judiciary, says Boyden Gray,
who was White House counsel during the first Bush
administration.
There is much disagreement, however,
about how far nominees properly can or should go in discussing
broad questions of legal philosophy, such as the vague "right of
privacy" on which the Court based Roe v. Wade. Such discussions
can become specific enough to telegraph future votes. Both
Ginsburg and Breyer, for example, assured Judiciary Committee
Democrats that the Constitution includes a right to abortion.
Some critics call those statements improper, even though they
did little more than reaffirm what Ginsburg and Breyer had said
long before their nominations.
One exponent of taking
the Korologos mantra -- "Keep your mouth shut" -- as an ethical
imperative is Laurence Silberman, a senior judge on the U.S.
Court of Appeals for the D.C. Circuit, on which he served with
Bork and now-Justices Antonin Scalia, Thomas, and Ginsburg.
During Scalia's 1986 confirmation hearing, his friend Silberman
counseled against expressing any view, even as to the
correctness of Marbury v. Madison. That's the 1803 decision
establishing the power of judicial review -- the seminal case in
all of constitutional law. Once you start down the road of
endorsing Marbury, Silberman advised Scalia, you are on the
slippery slope toward pledging to vote for this or that position
on currently controversial issues.
(Silberman,
currently co-chair of Bush's commission to assess U.S.
intelligence failures on weapons proliferation, disclosed this
episode in a 2002 speech. He declines to elaborate now.)
Many Democrats, on the other hand, say the Senate should
demand candid testimony from nominees about their legal
philosophies and should vote down those who balk. And the Bork
precedent of wide-ranging, candid discussion of the big issues
has made it harder for subsequent nominees to adopt the
Silberman-Scalia approach.
Democrats also cite a 2002
majority opinion by the same Scalia striking down a state
Supreme Court ethical canon. In Republican Party of Minnesota v.
White, Scalia said the tenet barring any candidate for an
elective judgeship from "announcing his or her views on disputed
legal or political issues" ran contrary to the First Amendment.
As Scalia explained, "A judge's lack of predisposition regarding
the relevant legal issues in a case has never been thought a
necessary component of equal justice.... It is virtually
impossible to find a judge who does not have preconceptions
about the law [and] pretending otherwise by attempting to
preserve the 'appearance' of that type of impartiality can
hardly be a compelling state interest."
Legal ethics
expert Stephen Gillers, of the New York University Law School,
sees the Scalia opinion as helping establish that senators "have
a right to know the nominees' views on the big issues of the day
at an appropriate level of generality, short of committing to
any position on any issue or pending or possible case."
As in many other fields, opinions on the ethical issues here
tend to be shaped by expediency. Nominees sometimes invoke vague
notions of propriety as a basis for refusing to discuss views
that they would gladly disclose if that seemed the best way to
win confirmation.
Of course, not every potential
Supreme Court nominee wants the job badly enough to put himself
or herself through the ordeal of confirmation. Some don't want
the job at all. "I would rather talk to the damned fools than
listen to them," a Supreme Court litigator named John Johnson
said more than a century ago, to explain his rejection of
President Cleveland's offer of a nomination.
"Bill
Clinton's great dream that he would have periodically," recalls
Clinton Chief of Staff Leon Panetta, "was that he would put
Mario Cuomo on the Court, and that Cuomo would engage with
Scalia, and that with two minds like that on the Court, the
debate would be for the ages." But Cuomo wasn't interested. Why
not? He explained it this way in a 1993 newspaper interview:
"They put you in this big room. They slam this mahogany door
shut. And you're dead. You're entombed.... You can't go on
television."
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