From rancor to reason

The Washington Post is at its worst in this article by David Von Drehle called “Turmoil Over Court Nominees.” The theme of the article is that the Democrats and Republicans share equal responsibilitly for the fact that conservative judicial nominees can’t get an up or down confirmation vote in the Senate. The major sub-theme is an attempt to whitewash the leaked memos in which Democratic revealed the raw cynicism of their party’s obstructionist efforts.
The Post story begins by giving equal credence to Republican claims that the war over the confirmation of judges began with the assault on Judge Bork in 1987 and Democratic claims that the war began in 1968, when Justice Fortas could not be confirmed as Chief Justice. Presenting these two situations as equivalent is so absurd that it can only be viewed as shilling by the Post for the Democrats. Fortas was blocked because he was corrupt, so corrupt that, soon after the filibuster, he resigned from the Supreme Court and was not allowed to return to the Washington, D.C. law firm he had founded. Understandably, then, the Fortas debacle did not start a partisan war over judges — for the next 19 years, with the exception of the Democrats’ treatment of Nixon appointee Clement Haynsworth, both parties acted reasonably well. Fortas was quickly forgotten and, indeed, has only recently been invoked in an exercise in revisionist history by the Democrats.
In 1987, however, Democrats opposed Robert Bork for purely ideological reasons. True, the Democrats wanted to smear him on personal grounds, going so far as to check the movies he had rented, hoping (one supposes) to find that he was into pornography. Unfortunately, he favored Fred Astaire, and the Democrats had to wait a few years for Clarence Thomas before they could resort to this type of smear.
Turning to more recent history, the Post makes no attempt to compare the rates at which Bush nominees and Clinton nominees (or, more instructively, those nominated by Clinton before he became a lame duck) have been voted upon and/or confirmed. Nor does it compare the number of Clinton and Bush nominees who have been filibustered. The reason is obvious. If the Post were to offer such comparisons, it would not be able to characterize the two parties as equally culpable participants in the judicial wars.
Nor would the Post be in as good a position to present the leaked Democratic memos as documents the significance of which is subject to dispute. Here, the Post reveals its bias in the selection of the two excerpts from the memos it reproduces as cut-outs in enlarged type. In the first, a Democratic staffer complains that the Republicans have violated assurances and understandings about the confirmation process. In the second, a Democratic staffer complains that the Bush administration is “the worst” when it comes to the confirmation process. But a Democrat complaining about the Republicans (or visa versa) is hardly news. The news in the leaked memos consists of statements such as the one in which a staffer points out that a special interest group ally would like to delay the confirmation of a Bush nominee until a key case on affirmative action has been decided. The Post buries this communication in the body of the article, and then tries to defend it by speculating that Clinton nominees to the same court were blocked (during Clinton’s lame duck period) “perhaps with the same explosive affirmative action case in mind.” The only evidence that this case played any part in the treatment of any Clinton nominee is a claim to that effect by Senate Democrats.
The Post concludes that “with an election once again looming, the nominations process is virtually certain to remain bogged down for at least a year. Beyond that, it is hard to know how to move the feuding committee from rancor to reason.” Actually, it isn’t very hard to know how to end the turmoil over the nominees. With the Republicans now in the majority, the Judiciary Committee is no longer the real problem. Rather the problem is the ability of the Democrats to filibuster nominees on the Senate floor. If the Republicans can pick up a few more Senate seats in 2004, then reason (defined by the normal practices employed by the Senate for more than 200 years) will once again prevail.

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