Politics & Policy

Let The Borking Begin

Alito and the Haynsworth playbook.

In 1969, the brilliant judge, Clement F. Haynsworth Jr., was nominated to the Supreme Court by President Richard M. Nixon. Instead of abortion, the issue then that senators and activists groups were focused on was civil rights. Led by Sen. Birch Bayh of Indiana, a cadre of Senate Democrats worked hand in glove with special-interest groups to organize the first “borking” of a nominee.

But any fair reading of Judge Haynsworth’s record would show no evidence that he was an opponent of blacks and other minorities. His actual record involving civil-rights litigation was limited to fewer than a dozen cases and he showed no discernible predispositions one way or another. But his critics misrepresented him as an unrepentant segregationist.

But that charge alone proved insufficient to torpedo his nomination. His critics then pulled another arrow out of their quiver: an old claim that Haynsworth had ruled in a case involving the Vend-A-Matic Company (a company in which he held 3 percent of the shares). A thorough examination demonstrated there wasn’t any ethical impropriety involved whatsoever in the case, but Haynsworth’s opponents still repeated the charge as often as they could and watched it gain traction. Tragically, it worked. The Senate would reject Haynsworth by a vote of 55 to 45.

Today, it’s 2005 and some Democrats and hardliners think the American people are raging amnesiacs who won’t notice the same playbook being used again. This time the target is Samuel Alito, the federal-appeals court judge nominated by President Bush to replace Justice Sandra Day O’Connor. And once again, rather than admit that they oppose him solely based on his “judicial philosophy,” his critics have attempted to distort his judicial record. But having failed to mischaracterize his views as extreme on issues involving religion and abortion, they have decided to play the ethics card.

The newest charge is conflict of interest based on a case Judge Alito participated in in 2002. In that case, a losing plaintiff complained after a three-judge panel (which included Judge Alito) unanimously issued an opinion favoring the Vanguard Group Inc. The claim was that Judge Alito should not have participated in the decision since he owned shares of the firm’s mutual funds. At the time, Judge Alito said he believed he had done nothing improper and the Administrative Office of the U.S. Court has additionally advised that judges aren’t required to disqualify themselves from cases involving their mutual-fund management companies.

But after a rehearing petition was filed, the case was reheard by a new three-judge panel. And guess what? The new panel unanimously issued an opinion which was almost word for word a repeat of Judge Alito’s original ruling. This should have demonstrated to all but the most closed-minded that the complaint was unwarranted. Yet now, in the wake of his nomination to the Supreme Court, a whisper campaign has started suggesting that this issue should be reexamined.

History is unlikely to repeat itself. Unlike thirty years ago, a smear campaign against a Supreme Court nominee based on falsehoods and misrepresentations won’t work today. Information can’t be strategically disseminated to collaborators at three news networks and a few major papers and still be considered comprehensive like it could then. Today news is distributed 24/7 by cable networks like Fox Cable News and MSNBC. Combined with the research skills of bloggers and the ubiquity of talk radio, falsehoods can be easily responded to and dismissed.

Notwithstanding the antiseptic benefits of the internet and multiple resources for news and information, distortions can still affect the Supreme Court confirmation process. Why? Primarily due to one key failing: the quest to make ideology the sole talisman of fitness to serve on the United States Supreme Court. Rather than temperament, legal skill, or character, judicial philosophy alone is increasingly what critics and opponents of the nominees to the Court are pursuing.

In addition to turning a vacancy on the Court into the equivalent of a national political campaign, it has promoted the selection of so-called “beyond reproach” stealth nominees to such a constricted and stilted degree that members of the Supreme Court have become less and less representative of America at large. Is it any wonder then that these individuals yield to the temptation to rule over us rather than between us?

Back in 1969, the smear tactics worked against Clement Haynsworth’s nomination. Ultimately he would return to the 4th Circuit Court of Appeals after his defeat in the Senate, but it would take nearly two decades to rehabilitate his reputation.

Haynsworth’s legacy, however, would be the culmination of an elaborate process–the creation of the political reverse hate crime. It forces all once and future Supreme Court nominees to run a gauntlet of intrusive and sometimes destructive processes solely created to ascertain and assess a judge’s internal judicial philosophy. But unlike a court of law, where the accused is innocent until guilty, here senators, activists, members of the media, and other duly deputized agents are allowed to undertake any and all measures necessary to pin down a nominee’s philosophy in order to prove they are unfit to join the Court.

It would began nearly two decades before President Ronald Reagan nominated legal scholar and judge Robert Bork to the Supreme Court and it has evolved to the point that it now encompasses intrigue, political strategy, active involvement by outside interest groups, and scrutiny beyond which many nominees find too great to bear. Although Judge Alito will likely pass through this gauntlet, only history will be the judge of whether it can ever be brought under control.

Horace Cooper is a professor of constitutional law at George Mason University.

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