The Magazine

The Seemliness Issue

What fired up Republicans? New Jersey, the judges, a tasteless funeral, and the odor of Clintonism.

Nov 18, 2002, Vol. 8, No. 10 • By NOEMIE EMERY
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CHALK UP A BIG ONE for Priscilla Owen, an unsung winner of last Tuesday's election, and a partial architect of the Republican victory. Owen is the Texas judge who was a Bush nominee for the U.S. Court of Appeals for the Fifth Circuit. She was described by the American Bar Association as "highly qualified," but her nomination never made it to the Senate floor. The ten Democrats on the Senate Judiciary Committee who served as the gatekeepers objected that she was much too "extreme." What made her "extreme" was her support for parental notification in the case of abortion for minors, a position that over 80 percent of Americans support. Liberal interest groups prevailed on liberal senators, themselves to the left of their party. Two of these senators, Dianne Feinstein and Charles Schumer, announced their intention to make unquestioning support for unrestricted abortion a litmus test for approving judges. Owen went down.

George W. Bush did not forget Owen. In every speech he made in his whirlwind tour just before the election, he was careful to include in his brief against Democrats that they were refusing to let his judges even be voted on. He said this in New Hampshire, in Colorado, in the Carolinas, in Missouri and in Minnesota, in Georgia and Texas. All of these states will now have Republican senators. Feinstein and Schumer are still in the Senate, but in the minority, where their power to block nominees will be vastly reduced. They will be able to vote against Bush nominees on the floor of the Senate, but they will no longer be able to keep them from getting there. Owen will come up again.

What fired up Republican voters? Things just like this. Owen would almost certainly have won on the floor of the Senate, as would Charles Pickering, another ill-fated nominee. But the Democrats used their majority on the committee to keep these Bush picks from reaching the floor. Committee chairman Patrick Leahy also broke his word on a long-standing matter of senatorial courtesy, refusing to let the last nominee of Strom Thurmond (retiring now at the age of 100) come to a vote in committee. As reporter Byron York explained, "Leahy lied."

Then came New Jersey. What do you do in a key Senate race with a clod of a candidate who is rapidly sinking under the combined weight of multiple scandals? You yank him out and replace him with...Frank Lautenberg, who is ancient and graceless but not actually under indictment. New Jersey had rules for changing steeds in midstream, meant to be used in cases of the illness or death of the candidate (not his moral impairment), and then not to be used any later than 51 days before the election. When Torricelli was yanked, there were 36 days to go. But what are a few laws among friends? They found a state supreme court packed with donors to Democrats. Legalists screamed, but the justices paid no attention. Lautenberg replaced Torricelli on the ballot, and he won.

Or did he? The 2000 Florida recount is often described as a red flag to Democrats--sure to enrage and inspire their fervent supporters. What is said less often (but is no less true) is that Florida is also a red flag to conservatives, who remember with loathing the legal contortions of Al Gore and the law-bending, deadline-extending antics of the Florida courts. Of what did the Supreme Court of New Jersey remind all these people? The Florida supreme court. The Lautenberg switch was everything that they detested: It was opportunistic. It was extra-legal. It was Gorean. And it was Clintonesque. At the time, it was hailed as the masterstroke that would save the Senate for Democrats, but that failed to work out as expected. What does it profit a party if it wins in New Jersey but loses in New Hampshire, Georgia, and Missouri? Lautenberg, like Schumer and Leahy, is now in the Senate, but in the minority. Which will not be all that much fun.

And then came the crash that killed Senator Wellstone. Democrats tried to use this as a means to silence Norm Coleman, suggesting that it was indecent for him to criticize Wellstone's replacement, meanwhile using the feelings stirred up by the death of the senator to whip up their own base. They whipped it up too much, at a memorial service that turned into a foot-stomping rally, repelling voters all over the country who thought that booing and jeering at some of the mourners was not the best way to honor the dead. The service didn't just help to elect Coleman, by dissipating the aura of reverence. Consultants believe there was a spillover, affecting many other tight races. Too many people found the event all too distasteful. And they made the Democrats pay.

DIFFERENT AS THEY ARE, these three things all have something in common, at least for conservatives. They raise what we can describe as the seemliness issue, the issue of decency. They are all cases where the Democrats tried to play smashmouth, blithely bent the law, took too much advantage of loopholes. They were too clever by half, too greedy by half, too eager to dispense with all courtesies. Most Americans don't like to see their judges vetted and vetoed by NARAL; they don't like to see judges trashed at the bidding of NARAL; and they don't like to see people trolling for votes at a funeral. The word for it all is Clintonian.

Clinton himself took a huge hit on Tuesday, sinking his reputation as a political rock star and mastermind. Everywhere he campaigned he left a trail of defeated candidates. He went to Florida to get revenge on Jeb Bush, who seemed to be in a squeaker. After he left, Bush opened a large lead. Clinton's beaming face at Paul Wellstone's memorial also went a long way toward sinking Walter Mondale, and helped feed the backlash. (This also should put an end to the great debate stemming out of the 2000 election, namely: Could Clinton have won it for Gore if Gore had used him? The answer is in now: It's no.)

The blowback from the rally appeared overnight, but other effects were long term and more subtle. Bush could make few direct hits at the people who shot down his judges, who were from safe states, or near the start of their tenure. But he could use them against vulnerable candidates running in key races in other parts of the country, saying that the Democrats there would be part of the system that gave the Leahys and Schumers their power. Did this work as an issue? Ask Ron Kirk, who was regarded as a bright rising star in the Texas Democratic party. Kirk suffered when he failed to stand up for Owen, who is also a native of Texas. Kirk is now history, having lost his race for the Senate by 12 points.

Kirk, of course, never got to vote against Owen, but he paid the price anyhow. So did some others. When the Judiciary Committee took down Mississippi's Judge Pickering, Georgia Democrat Zell Miller took to the floor of the Senate to warn that this vote would cost his party the statehouse in Mississippi. He didn't know the half of it. Last Tuesday, the issue helped bring down Miller's fellow Georgia Democrats Governor Roy Barnes and Senator Max Cleland. Like Kirk, Cleland didn't vote on the judges, but his place in the Senate's Democratic majority had helped make it possible. Bush could not hurt Leahy in Vermont, Schumer in New York, or Feinstein in California, but by taking down Cleland and fending off Kirk, he could push them all back into minority status, where they now have less power. Cleland took the hit for the work of the Leahys and Feinsteins. Nobody said life is fair.

Midterm elections can turn on turnout, and on turnout Republicans won. By all accounts, they were raring to get to the voting booths. According to a Gallup poll on Monday, November 4, 64 percent of Republicans said they were "very eager" to vote, while only about half of Democrats did. And what had them so worked up? Judges and arrogance; New Jersey and Wellstone; a long, long parade of in-your-face crassness, going back in time to the Clinton era, and threatening to continue in the future. For the moment, at least, this tide has been halted. Call it nemesis, call it comeuppance, call it sweet beyond measure. And call it Judge Owen's revenge.

Noemie Emery is a contributing editor to The Weekly Standard.