TO: Friends and Allies

FR: Jim Boulet, Jr., Executive Director, English First

DT: July 6, 2005

SJ: The Supreme Court Nomination Fight

Interest of English First

There frankly aren't that many court cases involving official English. Once a nominee is made by President Bush, I will carefully review his or her record.

English First opposed the nomination of now-Justice Clarence Thomas after he announced his opposition to so-called "English-only" in the workplace laws during his confirmation hearing.

Much of the battle for the Supreme Court's future will be fought about other matters by other organizations.

That being said, many of you who participate in this e-mail list may well belong to other groups. And even if you don't, much of the political discussion of the next few weeks will revolve around the Supreme Court. Accordingly, I thought you might be interested in an overview of the coming Supreme Court nomination fight and a list of some possible nominees.

Rove's Role Likely Key

It is no coincidence that this week the left wing blogs are full of attacks upon Karl Rove and his real or imagined role in the exposure of CIA agent Valerie Plame.

Rove's stated goal is to build a lasting Republican majority in the way McKinley's campaign manager, Mark Hannah, did. Given that after McKinnley's assassination, five of the next six presidents were Republicans (T. Roosevelt, Taft, Harding, Coolidge and Hoover), Rove has set the bar high for himself. Reaching that bar will require conservative votes.

Rove has been far more mindful about keeping President Bush's conservative base content if not always happy than the entire staff of Bush I (1989-1993) combined. The staff of the first President Bush obsessively purged the White House of Reaganites and seemed to view conservatives generally as a necessary evil.

The Passion of the Liberals

The liberal left knows that its undisguised ideology cannot win a popular majority on Election Day. Judges are another matter. Not one Supreme Court Justice is unaware of how the members of the Warren Court are lionized still for rewriting the nation's laws on a wholesale basis (Hat tip: anonymousliberal, "The Phenomenon of Liberal Drift.")

Supreme Court Justices fully understand that to vote for say, homosexual marriage, is to guarantee a favorable article in the Washington Post "Style" section and invitations to Georgetown's best dinner parties. Human beings hunger to be popular, especially if their new "friends" tower above them in social status.

Given that the absolutist legislative agenda of the National Organization for Women and other essential Democratic constituencies depends upon the judicial branch, one can safely predict that the first nominee to the Supreme Court will be rejected. The Bolton nomination provides a road map to likely tactics of Senate Democrats.

The Bolton Precedent

John Bolton was confirmed by the Senate several times. Yet he languishes as Senate Democrats and their moderate Republican allies have combined to filibuster his nomination to the United Nations as though no one had ever examined his record before..

Whenever Bolton proves accusations A, B and C to be baseless, up comes accusations E, F and G. Whatever documents are submitted are always inadequate.

The motto of Senate Democrats might have been taken from Robert Penn Warren's novel, All the King's Men. A political aide is asked to dig up dirt on Governor Willie Stark's political enemy, a judge thought to be of sound reputation. Stark says, "Man is conceived in sin and born in corruption and he passeth from the stink of the didie to the stench of the shroud. There is always something."

The Democrat's have successfully practiced a strategy of delay, delay, delay while allowing Bolton to become a caricature, to the point that he is used as an example of ill-temper by ESPN. Their plans for whoever President Bush nominates to the Supreme Court will come out of the same play book. Noted the Washington Post on July 3rd:

> Democrats signaled that whoever the nominee is, their three likely lines of attack will be to assert the White House did not consult them sufficiently, then paint the nominee as ideologically extreme and finally assert that the Senate had not received sufficient documents about the candidate.

What is "Borking"? Ask Senator Arlen Specter.

This same strategy of victory through personal destruction was first applied to Robert Bork's Supreme Court nomination in 1987. Unpaid parking tickets from his student days at Yale were said to demonstrate a lack of judicial temperament. His beard proved his sinister nature. His religious views -- Bork was no churchgoer -- were outside the mainstream. Clarence Thomas suffered similar flyspecking. The poor man's video rental records were pawed through in a search for suspicious viewing choices.

But just as Senate Democrats in 2005 have had Republican help in derailing the Bolton nomination, Senate Democrats in 1987 could not have succeeded had it not been for the yeoman work of one Judiciary Committee Republican, Arlen Specter.

Specter grilled Bork in a way he never grilled Clarence Thomas. The change undoubtedly had much to do with the political calendar. Specter was up for reelection during the Thomas fight and faced a conservative Republican primary challenger. When Bork was nominated in 1987, Specter had been safely reelected the year before.

Specter's aggressive anti-Bork attitude gave moderate Democrats all the cover they needed to vote against a brilliant conservative jurist.

Specter warned President Bush in a November 2004 interview that he wanted no staunch conservatives sent his way:

"When you talk about judges who would change the right of a woman to choose, overturn Roe v. Wade, I think that is unlikely," Specter said, referring to the landmark 1973 Supreme Court decision legalizing abortion. "The president is well aware of what happened, when a bunch of his nominees were sent up, with the filibuster," Specter added, referring to Senate Democrats' success over the past four years in blocking the confirmation of many of Bush's conservative judicial picks. "... And I would expect the president to be mindful of the considerations which I am mentioning."

Actually Specter's job is safe through 2006 no matter what he does because all committee chairmen are approved via a Senate resolution. It would take 60 votes to remove Arlen. Republicans total 55.

The other side knows how to make this work. They will have plenty of help from the so-called mainstream media, the one group of people in America who actually believes that the Supreme Court in its current form is already way too far to the right.

What the "First Nominee Will Lose" Calculation Means for Bush's Choices

Should President George W. Bush send up a nominee who is demonstrably conservative for the O'Connor seat, that nominee will lose.

The political calculations of Senate Democrats demand that they prove their willingness to resist. There are many Democrats who remain bitter at the Supreme Court's role in the 2000 election. Democratic interest groups are even more bitter that their party backed down and allowed three judges they pronounced anathema to be confirmed earlier this year.

Given this dynamic, I would be surprised to see President Bush nominate his friend Alberto Gonzales the first time around. I would be equally surprised to see the Bush Administration do more than is absolutely required to help confirm whoever they nominate the first time around.

Just as there were those in the Reagan Administration who kept the White House out of the Bork nomination battle until it was far too late, there will be those in the Bush White House who will urge him to stay aloof from this fight, just as he did during the lead up to the "nuclear option."

Those of us working on the Bork nomination in 1987 felt that the attitude of the White House was: "We gave you Bork like you wanted. Now go get him confirmed."

The Bush Administration could easily adopt that same approach this time: "We gave you a proven conservative like you asked (instead of the President's good friend, we might add). Go get him confirmed." And when conservatives are unsuccessful, Team Bush can "regretfully" send up a Hispanic moderate like Alberto Gonzalez as a consensus choice.

A possible complication to this scenario involves the retirement of Chief Justice William Rehnquist, an event which could easily take place before this summer is over. Newsweek suggests that President Bush will nominate Antonin Scalia as Chief Justice, leaving him with two Associate Justice seats to fill.

The thinking of some Bush folks could easily be that conservatives would be so ecstatic with Chief Justice Scalia, even though it would be a conservative replacing a conservative, that they would not notice if Gonzalez was named to the O'Connor seat (a moderate replaces a moderate) and a conservative was named to the Scalia seat (conservative replaces conservative).

After the dust settles, moderate Gonzalez would replace moderate O'Connor as the key swing vote on the court and the majority to preserve Roe v. Wade would remain 6-3.

Should President Bush be determined to get his friend Gonzalez a Supreme Court seat, he will be making personal what should be a political decision. President Bush told USA Today on July 5th: "Al Gonzales is a great friend of mine. When a friend gets attacked, I don't like it." This is not a good sign.

The Folly of Playing Identity Politics With Supreme Court Nominations

Lyndon Johnson told his biographer Doris Kearns Goodwin, that because of his nomination of Thurgood Marshall as the nation's first African-American Supreme Court Justice, "I bet from one coast to the other there was a rash of new mothers naming their newborn sons Thurgood." Alas for Johnson, Goodwin actually eviewed some data for her book, Lyndon Johnson and the American Dream. Quoting from page 307:

While Johnson expected thousands of mothers to name their children after his new Supreme Court Justice, birth certificates on file in Boston and New York City revealed seven Martins, ten Luthers, eleven George Washingtons, and fifteen Franklin Delanos, but not a single Thurgood.

Team Bush's continued obsession with the "Hispanic vote" fails to comprehend that there is no group of "Hispanics" nor are there some magic "Hispanic" issues.

As my friend Steve Sailor first pointed out, amnesty for illegal aliens is of interest to some Mexican American voters while other Mexican Americans strongly oppose amnesty. Puerto Rican voters, who are already American citizens, have no dog in the amnesty fight, nor do Cuban American voters, unless the person getting amnesty was Fidel Castro.

"A Supreme Court Justice who looks like me" is a political priority of virtually no one.

Political Dynamics of the Senate Judiciary Committee

The makeup of the Republican side of the Senate Judiciary Committee in 2005 includes one likely 2008 Presidential candidate, Sam Brownback (R-KS). Brownback's people have to be calculating that if their man can be seen as getting a good pro-life candidate through the confirmation hearing and then that candidate fails to win confirmation under Senate Majority Leader Bill Frist, another 2008 presidential candidate, Brownback will benefit.

Senator Hatch (R-UT) and Grassley (R-IA) were members of the Senate Judiciary Committee during the 1987 Bork nomination battle and the 1991 Thomas nomination battle. One hopes they learned from that experience.

Senator Sessions (R-AL) was nominated for a judgeship in 1986 but had his nomination derailed by one Arlen Specter. Freshman Dr. Tom Coburn (R-OK) is tough and smart.

Mike DeWine (R-OH) and Lyndsey Graham (R-SC) were part of May deal on Bush judicial nominations. Subsequently, DeWine's son lost a Congressional race and Graham gained a primary opponent because of voter outrage over their bargain. Will DeWine and Graham try to redeem themselves or continue to play to the New York Times' idea of bipartisanship (Republicans should always give in)?

Jon Kyl (R-AZ) and John Cornyn (R-TX) have been faithful to the Bush agenda. Cornyn has himself been mentioned as a possible Bush Supreme Court nominee.

These Republicans will face an all-star line up of Democratic orators: Ted Kennedy (D-MA), Charles Schumer (D-NY), the architect of the Democrats highly successful judicial strategy, and Richard Durbin (D-IL). Durbin also serves as Democratic Whip, the number two post in the Senate's Minority.

The Committee's ranking Democrat, Patrick Leahy (D-VT) has no worries about seeming too liberal given his state has elected both Howard Dean and Jim Jeffords. Dianne Feinstein (D-CA) will play aggrieved feminist whenever given an opportunity, although her fellow Californian, Barbara Boxer does outraged emoting better.

Three of the eight Democrats on the Judiciary Committee, Biden (D-DE), along with Leahy and Kennedy, all served on the Committee during the Bork nomination fight. Kohl (D-WI), was elected in 1988 and fought the fight against Clarence Thomas. This group, plus Schumer, have succeeded in defeating many highly qualified judicial nominees over nearly two decades.

Possible nominees

The New Republic's Jeffrey Rosen identified eight possible nominees last November. In order:

Samuel Alito Jr., 54. U.S. Court of Appeals for the Third Circuit. Known as "Scalito," or little Scalia, he is considered less blustering than the big guy, but liberals will undoubtedly balk at his abortion record. In 1991, he dissented from a decision to strike down Pennsylvania's spousal notification provision--a decision the Supreme Court later upheld in Planned Parenthood v. Casey, the decision that reaffirmed Roe v. Wade. Janice Rogers Brown, 55. California Supreme Court. Of all the names on Bush's short list, this fire-breathing libertarian seems the most activist and the least judicious. Brown has left no doubt about what she thinks of the post-New Deal regulatory state: She derisively described 1937, the year the Court began to uphold the New Deal, as "the triumph of our socialist revolution," adding that "private property was a major casualty." Edith Brown Clement, 56. U.S. Court of Appeals for the Fifth Circuit. Unanimously confirmed in 2001, Clement has written little and therefore might be an appealing stealth candidate. But everything about her record suggests she is an enthusiastic supporter of the Constitution in Exile. This year, for example, Clement joined a blistering dissent by Judge Edith Jones objecting to the application of the Endangered Species Act to protect a rare species of underground bug. The U.S. Fish and Wildlife Service had denied a group of Texas developers a permit to build a shopping mall on the bugs' habitat, and Clement and Jones objected that protecting bugs was not a commercial activity, criticizing their colleagues for creating "a constitutionally limitless theory of federal protection." Emilio Garza, 57. U.S. Court of Appeals for the Fifth Circuit. ... he, too, will run into trouble over Roe. In 1997, his court's majority struck down a Louisiana law that allowed judges to deny abortion to a minor (and to notify her parents), even if she was mature and the abortion was in her best interest. J. Michael Luttig, 50. U.S. Court of Appeals for the Fourth Circuit. ... In 1998, for example, Luttig wrote an opinion faithfully applying the Supreme Court's reversal of a ban on partial-birth abortions, a decision with which he personally disagreed. Luttig has also shown an open-minded willingness to infer new constitutional rights from old precedents: Disagreeing again with conservative colleagues, he held that there is a constitutional right for people who have been convicted of serious crimes to have access to DNA evidence that might prove their innocence. Michael McConnell, 49. U.S. Court of Appeals for the Tenth Circuit. McConnell is the most respected conservative legal scholar of his generation, and liberals and moderates throughout the legal academy would enthusiastically support his nomination. Liberal interest groups, unfortunately, would aggressively oppose it because he is personally pro-life and is also a vocal and effective critic of Roe. ... [U]nlike Justices Scalia, Thomas, and Rehnquist, he argued that graduation prayers in public schools were unconstitutional even before the Court struck them down in 1992 John Roberts, 49. U.S. Court of Appeals for the Washington, D.C., Circuit. ... Roberts joined Sentelle in questioning whether the Endangered Species Act is constitutional under Congress's power to regulate interstate commerce. The regulation in question prevented developers from building on private lands in order to protect a rare species of toad, and Roberts noted with deadpan wit that "the hapless toad ... for reasons of its own, lives its entire life in California," and therefore could not affect interstate commerce. J. Harvie Wilkinson III, 60. U.S. Court of Appeals for the Fourth Circuit. The former chief judge of the Fourth Circuit clerked for Justice Lewis Powell, and this courtly conservative intellectual has long demonstrated Powell's sensitivity to judicial overreach. When he joined his colleagues in striking down part of the Violence Against Women Act as impossible to justify under Congress's power to regulate interstate commerce, he added a concurrence confessing his concerns about what he candidly called "conservative judicial activism."

Keep an eye on Harriet Miers, White House counsel. Miers was the first woman president of the Texas Bar Association, a co-managing partner of a 400-lawyer firm in Texas, a one-time Dallas city councilor, and by the by, the personal lawyer to one George W. Bush. She joined his staff as governor, served as staff secretary (Richard Darman's old job) in the first administration, and now oversees the White House's legal work."

President Bush has stated that he will be interviewing prospective nominees himself in a a process which would take place, according to USA Today, "over the next few weeks." Once he makes his choice, certain other things must happen before the confirmation hearing can be held.

According to Roll Call ("Senate Braces for Court Fight," July 5, 2005):

[The Senate Judiciary Committee] would need close to six weeks or more to complete all the requisite background checks as well as waiting for the FBI to conduct its own extensive probe and the American Bar Association to complete its review of the candidate and make a recommendation. That would put the earliest potential hearings in mid-August. Only once in 33 years has there been an August Supreme Court hearing, the one-day, August 5, 1986 hearing for Justice Antonin Scalia.

There is no way that Senate Judiciary Committee Democrats will allow a hearing on any Bush choice worth the effort of conservatives to be rushed through in July. It is equally unlikely that most Senators will tolerate any intrusion into their August recess plans.

Accordingly, it might behoove the Administration to keep its counsel and make its choice in September. Delay would also allow the White House to await other developments, such as a Rehnquist resignation, which could impact their nomination strategy as I described above.

Last modified: July 7, 2005