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Jewish World Review July 18, 2005 / 11 Tammuz, 5765 This country has seen its share of confirmation battles, but they seem to be getting nastier By Carl P. Leubsdorf
http://www.JewishWorldReview.com |
Since the Senate last confirmed a Supreme Court justice, more than
half of its seats have changed hands. Only three senators remain,
all Democrats, who took part in all of the highly charged,
conservative-liberal confirmation battles since 1968.
And a mythology has sprung up over how much the 1987 defeat of
conservative Robert Bork changed the role of outside interest groups
in fights once waged solely in Senate halls and chambers, a longtime
Senate aide says.
"All of that is history written by people who weren't there," said
James Flug, then as now a close adviser to Democratic Sen. Edward
Kennedy. He said some of the same liberal groups have always been
involved, though he conceded the cast on the conservative side has
changed and grown since Bork's rejection.
To a considerable degree, the battles have all been similar,
revolving around two conflicting concepts of the courts. In the
1960s and 1970s, conservatives complained of activist positions on
political and criminal issues, like reapportionment and criminal
rights; now, they dispute efforts to set policy on social issues
like abortion and gay marriage.
But Flug acknowledged other factors have altered the nature of
confirmation fights — the Senate's changing makeup, revisions in its
rules and a decreased emphasis on the substance of judicial issues.
The result: greater acrimony and partisanship.
The veteran Washington attorney, who returned to the Massachusetts
Democrat's staff two years ago after 30 years in private practice,
compared today's Senate with the one that, in the late 1960s and
early 1970s, blocked three Supreme Court nominees, a liberal and two
conservatives.
In 1968, Republicans and conservative Democrats rebuffed President
Lyndon Johnson's effort to install longtime adviser Abe Fortas as
chief justice. After Richard Nixon won the White House, Democrats
led battles that rejected Judges Clement Haynsworth and G. Harrold
Carswell.
Flug cited these differences:
Senate divisions, once on ideological lines that spanned both
parties, now fall mostly along party lines. Democrats have lost a
majority that was always greater numerically than ideologically.
In November 1969, 17 Republicans joined 38 Democrats in rejecting
Judge Haynsworth, including the two top GOP leaders.
Later, 13 Republicans helped 38 Democrats beat Judge Carswell. "In
both votes, the Republicans made the difference," he said.
Back then, it took 67 votes to limit debate, rather than today's 60.
"So you needed even more for a consensus to get anything through,"
Flug noted.
There was less party discipline so supporters and foes of the
nominees ran the fight, not the party leaderships. "You couldn't
count the votes in advance," he said. "You had to make your best
estimate of what was possible."
Debate centered on the nominees' substantive positions. "No one paid
much attention to the voting until you got to the end because there
was no party discipline," he said.
As for outside groups, Flug noted that, on the liberal side, two
main players remain the same: organized labor and the Leadership
Conference on Civil Rights. But he conceded that far more
conservative groups have become active since the rejection of Bork.
"But the idea that the groups are driving the thing, at least on our
side, is not true," he said.
"So to some extent, I think it's a bit exaggerated that it's so much
of a difference," he said.
Despite today's greater partisanship, Flug said, some senators on
both sides agree "consultation and consensus would be a lot better
for everyone than confrontation and conflict." That was clear in the
bipartisan effort by 14 senators to head off a GOP leadership effort
to change the filibuster rule.
Flug noted that Bush faces a similar choice to one Nixon faced after
the Senate rejected Judge Haynsworth over conflict-of-interest
charges.
Without consulting senators, Nixon picked an even more conservative
nominee the second time — and lost again.
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© 2005, Dallas Morning News Knight Ridder/Tribune Information Services.
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Arnold Ahlert | |||||||||||
