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How Democrats stole the judicial confirmation process

Conservative Review

The “stolen seat”????

As in the Republican Senate “stole” a seat on the Supreme Court because it refused to confirm President Obama’s election year nomination of Merrick Garland? Something none other than then-Senator Joe Biden vowed when he thought then President George H.W. Bush might get a court nomination in the election year of 1992.

How about this? How about the Democrats stole — make that deliberately destroyed — the U.S. Senate’s judicial confirmation process — something they started years ago.

With the nomination and now ongoing Senate confirmation hearings of Trump Supreme Court nominee Neil Gorsuch, conservatives are well within their rights to roll their eyes at the disingenuous lies that are coming Judge Gorsuch’s way. Whether the topic is Obamacare, birth control, the role of federal agencies, or all manner of rights ranging alphabetically from abortion to workers, the liberal attack machine is at work. And alas, there is sadly not a thing new about this.

As it happens, I had the opportunity to work on the confirmations of five Reagan Supreme Court nominations as a member of the White House Office of Political Affairs. One of those nominees was Judge Robert Bork — the nomination where the verb “to bork” emerged. Later, in the Bush 43 era, as a private citizen, I was heavily involved in President Bush’s nomination of a best friend from college for a seat on the Third Circuit Court of Appeals. I went into this 2001-2002 episode with eyes open and taking notes, and the experience — which ended with the successful confirmation of Judge D.Brooks Smith — became a small book: “The Borking Rebellion: The Never-Before-Told Story of How a Group of Pennsylvania Women Attorneys took on the Entire U. S. Senate Judiciary Committee--And Won

The bottom line? There is no limit — none — to what liberals will do to defeat a GOP president’s judicial nominations. And what once was limited to Supreme Court nominees has now long-since spread to confirmation fights for the lower courts. Note well that in his recent confirmation battle to become attorney general, former-Senator Jeff Session’s history as a defeated — make that borked — Reagan judicial nominee for a lower court was dredged up all over again.

The grim fact of what has become routine at these events is that they have become the very antithesis of what they were originally conceived to be: a serious forum to discuss the legal issues of the day.

Instead they have become political snake pits, with one far-left wing special interest after another lined up to assail any and everything about a GOP president’s nominee of the moment. How does this work? Let me provide but one example from the confirmation of Judge Smith.

I write to request your opinion concerning certain ethical questions that have arisen with the nomination of Judge D. Brooks Smith in the United States Court of Appeals for the Third Circuit.

So began a 2002 letter from then Wisconsin Senator and liberal Democrat Russell Feingold to NYU Law School Vice Dean Stephen Gillers. On the surface, the letter seems routine to the point of innocuous. A letter from a sitting U.S. senator on the Senate Judiciary Committee to a then-vice dean of a prominent American law school on the subject of judicial ethics. It sounds and appears as something totally normal, well within the bounds of senatorial inquiry when considering a judicial nomination.

Not so fast.

After working on those five Supreme Court nominations I mentioned above, I had learned something about how liberals played the game. The obvious question to me was: Who is Stephen Gillers — really? The answer did not require much digging, although characteristically it was the kind of digging the liberal media of the day never got around to doing when they would quote Gillers on the subject of judicial ethics. Not in the habit of quoting myself, let me break that rule here to quote from “The Borking Rebellion.” For the sake of reference, note that the group referred to here — the Community Rights Counsel — was a far-left, hyper-partisan special interest group whose mission had become, among other things, attacking GOP judicial nominees. Note as well that Professor Gillers was cited repeatedly in the liberal media as simply an ethics expert. I wrote this:

‘Nothing for Free’ was the title of a report issued by the Community Rights Counsel in July of 2000. A report attacking judicial seminars…I found this reference in its very first sentence:

“The authors are indebted to…Steven Gillers (sic)…(who) reviewed earlier drafts and provided unique and unfailingly helpful advice on improving the final product.”

Wow. The article in The Washington Post on Brooks Smith and John Gardner Black (a central figure in a fraud case heard by Smith) had been produced by research from Kendall. In writing the story that challenged Brooks’ ethics, Post reporter Ed Walsh then went to Stephen Gillers, presenting him in the story simply as a ‘professor of legal ethics at New York University Law School.’ Gillers was then quoted in the story casting doubt on Brooks (‘a serious argument for recusal is present…Judge Smith should have revealed the information’etc.)

In other words, the Post used Kendall’s CRC research to criticize Brooks, then used Kendall’s CRC consultant Gillers to verify that an ethics breach is potentially ‘present.’ Gillers was never identified as a CRC consultant, presented instead as a disinterested third party expert on legal ethics.

This was but one small piece of the Smith nomination, but standard procedure when it came to dealing with liberals on Supreme Court nominations. Not to wax Trumpian, but the confirmation system had been rigged. In that case, a sitting Democratic senator on the Judiciary Committee wrote a letter to a supposed legal ethicist whom he knew to be an ideological ally and on whom he could count for an opinion to the senator’s liking. Likewise the Post, either not bothering to check the “ethics expert” for any ties that would rule him out as an uninterested observer — or knowing full well and deliberately omitting the fact —  blithely used him as a source to condemn the nominee. The paper, of course, never mentioned the “ethics expert” as someone who was in fact tied to the interest group that was attacking the nominee.

This is the game that the confirmation process has become. And that cited incident in the Smith case doesn’t even touch the surface of the well of deceit and dirty tricks used against one nominee for an appeals court opening.

Why does this mean anything now? Because as the Gorsuch nomination is played out it appears more than likely that at this exact moment in political time the nominee will be confirmed. A superb, well-thought of nominee has been nominated by a GOP president with a GOP Senate at hand to get him confirmed. But make no mistake. The Gorsuch nomination is merely a moment where the liberal interest groups who have so corrupted this process — stolen it — are shaking off the doldrums resulting in a breather from nomination fights. But the moment the news hits that the next justice has decided to hang up his or her judicial robe — or as lower court nominations proceed with a roster of conservatives — you can bet that the forces who have spent years — say again years — corrupting this process will be out in force.

The question then will be a simple one. Are conservatives ready? Are they, to use a baseball metaphor, finished with the spring training of the Gorsuch nomination and ready for World Series judicial confirmation hard ball?

Time will tell. But, to mix metaphors, forewarned is forearmed.

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