IN 1987, the Reagan administration seriously underestimated the energy and ruthlessness that its opponents would be willing to bring to bear against a Supreme Court nominee.
There was no excuse for being thus taken by surprise: earlier campaigns against various Court of Appeals nominees had shown what the organized left was willing to do. For example, Daniel Manion--confirmed in a squeaker, by a Republican Senate; Alex Kozinski--confirmed after suffering attacks for demanding work from his employees; Jeff Sessions--defeated by a 10-8 Judiciary Committee vote (with Arlen Specter, now chairman of the Judiciary Committee member, among the nays). These experiences even led to the publication by the Free Congress Foundation of a book called The Judges' War, edited by Patrick McGuigan. And all this was before the Bork battle.
The first sign that Judge Bork would become the victim of a one-sided war was the fact that nothing was done on his behalf throughout the long slow-news season of July and August.
Nothing was done by Bork himself, because he respected the traditions of his profession, and it was considered unseemly for judicial nominees to "campaign." Nothing was done by the administration because the White House didn't think it was necessary. (Full disclosure: I was at the Justice Department at that time, and I have some reason to think a more aggressive strategy was advocated at our quarters than in the West Wing.) And little was done by "the groups," because there simply were not that many activists on the right focused on judicial nominations: there was the Free Congress Foundation, whose judicial confirmation efforts were ably led by the aforementioned McGuigan, but that was about it.
As if failing to show up on the battlefield were not bad enough, the administration's timing played perfectly into the hands of Ted Kennedy, Ralph Neas, et al. The nomination was announced just before the Fourth of July weekend. Kennedy rushed to the Senate floor with his infamous "In Judge Bork's America" speech, and that was what resounded through the media all through the long weekend. The speech galvanized anti-Bork forces, but its principal impact was probably that of chilling potential supporters and preventing early commitments to vote for the nominee.
Furthermore, far from sitting back and enjoying the ripple effects of his speech, Kennedy then spent the Fourth of July weekend phoning leaders of liberal activist groups, sharing with them Ralph Neas's opinion that defeating Bork was "eminently doable," and assuring them, in case they had doubted it, that their efforts would find a sympathetic echo within the Senate Judiciary Committee.
One could go on, but the story of the anti-Bork strategies has been told before. The important point is that this is not 1987. For one thing, conservative groups are ready--several of them, adequately funded, with both elite and grassroots leadership, and covering social and business conservatives alike. And the White House, whether it has the stomach for a fight or not, will at least not be surprised if it gets one.
As of this writing, no nominee has been announced; all we have on the table is Justice O'Connor's resignation (effective when her replacement is confirmed, so she'll be back next year if the fight drags on), escalating rumors about Chief Justice Rehnquist, and faint rumors about Justices Stevens and Ginsburg. But all these rumors could come to fruition, and that would not affect my principal recommendation to the administration: do not announce any nominees until Labor Day, or late August at the earliest.
The principal reason is to avoid letting the nominee(s) get done to a turn over the left's summertime barbecues, as happened to Bork. Instead, let liberal activists shadow-box with hypotheticals, and let the public get good and bored with the whole subject.
It will be objected that the Senate can't perform its advice and consent function (even assuming a restrictive, docile interpretation of that function) on such short notice. But this objection ignores the on-the-ground realities of modern judicial confirmation politics. You can take it to the bank that Democratic Senate Judiciary offices have files this thick on every conceivable nominee. Republicans should have files of their own, or easy access to them. More than enough research for an adequate advice and consent process has already been done. The only process a slowed-down schedule would prevent would be a protracted show-trial of the nominee under cover of "hearings." And that should be prevented.
A nomination should be announced earlier only if Sen. Specter can be prevailed upon to promise (brief) hearings starting in early August, rather than waiting until September, and there are political hostages to make sure he keeps that promise. Hard to see what kind of hostages those could be: He's not going to run for reelection; maybe there are some Pennsylvania district court judgeships that he cares about; maybe he's a great believer in the Army War College facility in Carlisle, Pennsylvania, which is slated for closing. I don't know--but don't rely on jurisprudential conviction to move the senator to expedite the nomination. He's been on the talk shows lately preening over his opposition to Bork. So, yeah, hostages.
There is another rule from the dominant playbook that should also be jettisoned: the rule against appearing to "campaign." Sure, a nominee shouldn't do whistlestop tours extolling original intent; but it would be self-defeating antiquarianism to eschew anything that could make him or her better known to the American people, as long as he or she does not discuss controversial issues that could come before the court (a reticence that he or she should also maintain before the Judiciary Committee, of course, as Justices Ginsburg and Breyer did). Nominees can and should do "lifestyle" interviews, sharing their catfish tales with Field and Stream, their cookie recipes with Oprah, their CD collections with Spin, etc. etc.
The leading lesson from the Bork experience, and also the Thomas experience, is that because the Supreme Court has arrogated most of cultural politics to itself, confirmations to it have become the most brutal alleyway of American politics. The "rules" that most players seem to assume call for an early nomination, delayed hearings, and a loftily detached nominee; but, however venerable in origin and laudable in theory these rules may be, the left has formulated its playbook around them, making them operationally part of the left's own strategy. There is no reason for President Bush to play by them.
David M. Wagner is associate professor of law at Regent University, and blogs at Ninomania.blogspot.com.