On Judges and "Paper Trails"
Opponents of John Roberts’ nomination to the Supreme Court are vociferously calling for the release of papers from his time in the Solicitor General’s office, which have yet to be released by the White House. Unimpressed by the boxes and boxes of documents (41 at last count) and tens of thousands of pages of papers already available for review, they contend that his “thin” paper trail and relatively short time as a jurist make him a “stealth” candidate. Furthermore, it is clear that the relatively smooth sailing and uncontentious hearings that Justices Ginsburg and Breyer enjoyed after their nominations are not in the cards. The emerging justification for the apparent difference in standards is that the disparity in how Roberts is questioned, versus how Ginsburg and Breyer were questioned, will derive from, and will compensate for, the lack of a suitable paper trail with which to discern Roberts’ judicial philosophy.
This is a completely dishonest and disingenuous argument.
Face it - there is a substantial part of the body politic that has already made up its collective mind about Roberts (one, because the dreaded “c” word has been associated with him, and two, because President Bush appointed him). This element is looking less for clues as to his judicial philosophy – the surface argument - as much as it is looking for ways to smear him, sufficient to trigger the “exceptional circumstances” filibuster that is really the only credible hope for derailing his confirmation. Hints of this have already emerged; one instance is the portrayal of his long-ago, mainstream critique of the discredited concept of government- (or judge-) determined "comparable worth" pay scales. Some in the left wing press have subsequently used this to slam Roberts for this purported "hatred" of women, which is really strange when you consider that there are legions of women that also think that comparable worth is a pretty nutty idea. Another example is the "finding" that among the thousands of pages of documents and writings being reviewed, there is one instance where he crossed out “Civil War” and substituted “War Between the States”. This (of COURSE!) makes him a Confederate sympathizer and a redneck, which obviously means he’s a RACIST!!!
There are, incredibly enough, apparently some who actually do believe this, ludicrous though it will certainly appear to the rational majority.
This leads to the crux of the whole “paper trail” issue: Do anti-conservative judge activists relentlessly pursue every scrap of paper that can be found to demean, degrade, and undercut the character and reputation of the nominee in question because there’s a “miniscule” paper trail? Or do Republican presidents tend to nominate so-called “stealth” nominees because they can count on – no matter what - intense efforts to dig up and scrutinize something – anything! - negative that can be associated with and flung at the candidate, and therefore seek to minimize the availability of what their adversaries are looking for to bludgeon them with?
In Robert Bork’s case, people may recall, the “paper trail” extended to video rental records of movies he had rented, hardly part of a sober, rational process designed merely to discern the nominee’s judicial philosophy. (Those were no doubt dug up by activists/reporters concerned about maintaining the constitutional right to privacy). And let’s not even get into the whole Thomas debacle, where the allegations brought against him that nearly derailed his nomination had nothing to do – at least on the surface – with his judicial philosophy. As much as some on the left purport to be disgusted by Kenneth Starr’s pursuit of President Clinton, so are many others equally appalled at the “borking” of Justice Thomas, by flimsy and specious allegations that paled in comparison to the similar, but more numerous and far better documented, transgressions later committed by the aforementioned President Clinton.
It’s really a chicken-egg sort of thing at this juncture between the impetus to dig far deeper than warranted on one side, and the concurrent effort to minimize what the prospective justice can be smeared with on the other. It’s now a vicious circle in which each both causes, and is perpetuated by, the other.
It’s not deviousness and trying to “hide something” that drives efforts to appoint so-called stealth candidates as it is survival and pragmatism. If Bush were to nominate a conservative with the much-wished-for paper trail, he can count on a hugely contentious filibuster. If he nominates a “moderate”, he gets slimed from both ends of the political spectrum, and he risks another Souter (a “stealth” candidate that hasn’t worked out so well for conservatives/Republicans - there are risks, and stealth candidates can cut both ways). And he sure isn’t going to nominate a known liberal – he’s a Republican with a Republican-majority Senate, for crying out loud - no matter how much that would smooth the way with the opposition party. So, from the Republican perspective, nominating candidates that provide the best balance between being reasonably likely to apply a somewhat conservative approach to the bench, while concurrently trying to avoid nasty character-degrading shriek-fests and obstructionism from the opposition based on what they can dig up from the candidate's paper trail, is the least bad and most pragmatic option available.
This is a completely dishonest and disingenuous argument.
Face it - there is a substantial part of the body politic that has already made up its collective mind about Roberts (one, because the dreaded “c” word has been associated with him, and two, because President Bush appointed him). This element is looking less for clues as to his judicial philosophy – the surface argument - as much as it is looking for ways to smear him, sufficient to trigger the “exceptional circumstances” filibuster that is really the only credible hope for derailing his confirmation. Hints of this have already emerged; one instance is the portrayal of his long-ago, mainstream critique of the discredited concept of government- (or judge-) determined "comparable worth" pay scales. Some in the left wing press have subsequently used this to slam Roberts for this purported "hatred" of women, which is really strange when you consider that there are legions of women that also think that comparable worth is a pretty nutty idea. Another example is the "finding" that among the thousands of pages of documents and writings being reviewed, there is one instance where he crossed out “Civil War” and substituted “War Between the States”. This (of COURSE!) makes him a Confederate sympathizer and a redneck, which obviously means he’s a RACIST!!!
There are, incredibly enough, apparently some who actually do believe this, ludicrous though it will certainly appear to the rational majority.
This leads to the crux of the whole “paper trail” issue: Do anti-conservative judge activists relentlessly pursue every scrap of paper that can be found to demean, degrade, and undercut the character and reputation of the nominee in question because there’s a “miniscule” paper trail? Or do Republican presidents tend to nominate so-called “stealth” nominees because they can count on – no matter what - intense efforts to dig up and scrutinize something – anything! - negative that can be associated with and flung at the candidate, and therefore seek to minimize the availability of what their adversaries are looking for to bludgeon them with?
In Robert Bork’s case, people may recall, the “paper trail” extended to video rental records of movies he had rented, hardly part of a sober, rational process designed merely to discern the nominee’s judicial philosophy. (Those were no doubt dug up by activists/reporters concerned about maintaining the constitutional right to privacy). And let’s not even get into the whole Thomas debacle, where the allegations brought against him that nearly derailed his nomination had nothing to do – at least on the surface – with his judicial philosophy. As much as some on the left purport to be disgusted by Kenneth Starr’s pursuit of President Clinton, so are many others equally appalled at the “borking” of Justice Thomas, by flimsy and specious allegations that paled in comparison to the similar, but more numerous and far better documented, transgressions later committed by the aforementioned President Clinton.
It’s really a chicken-egg sort of thing at this juncture between the impetus to dig far deeper than warranted on one side, and the concurrent effort to minimize what the prospective justice can be smeared with on the other. It’s now a vicious circle in which each both causes, and is perpetuated by, the other.
It’s not deviousness and trying to “hide something” that drives efforts to appoint so-called stealth candidates as it is survival and pragmatism. If Bush were to nominate a conservative with the much-wished-for paper trail, he can count on a hugely contentious filibuster. If he nominates a “moderate”, he gets slimed from both ends of the political spectrum, and he risks another Souter (a “stealth” candidate that hasn’t worked out so well for conservatives/Republicans - there are risks, and stealth candidates can cut both ways). And he sure isn’t going to nominate a known liberal – he’s a Republican with a Republican-majority Senate, for crying out loud - no matter how much that would smooth the way with the opposition party. So, from the Republican perspective, nominating candidates that provide the best balance between being reasonably likely to apply a somewhat conservative approach to the bench, while concurrently trying to avoid nasty character-degrading shriek-fests and obstructionism from the opposition based on what they can dig up from the candidate's paper trail, is the least bad and most pragmatic option available.
posted by Wascally Wabbit at 9:20 PM
0 Comments:
Post a Comment
<< Home