Advise and obstruct

National Review, Oct 21, 1991 by William McGurn

IT'S 10:04 A.M. this Beltway Friday, and amid the crimson drapes and Corinthian columns of the Senate Caucus Room the members of the Judiciary Committee straggle in for their vote on Clarence Thomas's appointment to the Supreme Court. Over in the audience, the National Abortion Rights Action League's Kate Michelman tells two reporters she is holding out for a delay in the floor vote that would give Thomas opponents some time. Up in front, Committee Chairman Joseph Biden (D., Del.) enters the room fresh from a floor speech in which he came out against Thomas, thus injecting some life into the opposition. Just so nobody misses the point, Ralph Neas, the liberal white director of the Leadership Conference on Civil Rights, in insisting to journalists around him that "This is not a done deal."

Well, yes and no. Although it will be almost three hours before they vote (each of the 14 committee members will first deliver himself of a lengthy speech), the outcome is already known: it will be 7 to 7, with Dennis DeConcini (D., Ariz.) siding with the six Republicans for Thomas. Early on, it looked as if the vote might be 9 to 5 or at least 8 to 6, but the announcement yesterday evening by Howell Heflin (D., Ala.) that he would oppose Thomas is probably what pushed Biden, who had voted for Thomas before, over with the rest of the Democrats. This in turn will make the upcoming floor debate more contentious. Still, barring a filibuster, by the time you are reading this Judge Thomas will be Justice Thomas.

For conservatives who watched Thomas squirm under the Judiciary Committee inquisition, the hearings appeared to be yet another triumph for the forces that have made the confirmation process such a farce. But the real story is the unraveling of the Bork legacy. Though Republicans cannot set the rules so long as they remain the minority, they are learning that they can beat the Democrats at their own game if they put their minds to it. And Democrats are learing that they are losing, not just in terms of affecting the composition of the Court, but in public opinion as well.

"The President learned the lessons of the past," says Terry Eastland, who was a Justice Department spokesman in the Reagan Administration. "When you hear Ralph Neas complaining about all the human-interest stories surrounding Clarence Thomas, he's speaking from the perspective of someone who's found himself anti-Borked."

In an ideal world, Presidents would pick Supreme Court Justices solely on the basis of their legal qualifications, and senators would put aside their ideology and vote for nominees who understand the separation of powers. The character assassination of Robert Bork was the Senate Democrats' declaration that they were no longer going to play by the rules.

Despite the importance of Bork's defeat, the Democrats have nonetheless failed to affect the direction of the Supreme Court. The reason is the Constitution. Whatever Joe Biden might say about restoring (redefining?) the "advise" leg of the Senate's constitutional obligation to "advise and consent" on Supreme Court nominees, the nomination power lies solely with the President. The result is that while the Senate can force changes in personnel it cannot change the drift of the Court; Anthony Kennedy and David Souter vote more or less the way Bork would have voted on most issues. And the Democrats have to start asking themselves whether they want to invest so much of their capital in a losing enterprise.

This is especially true now that the Republicans have learned the rules, and--more important--the public is wearying of Democratic inquisitions. An ABC news poll after the hearings found that support for Thomas among blacks as well as whites remained largely unchanged by the hearings. And the changes that did occur were remarkable. Before the hearings, a substantial majority of Americans thought Thomas should answer questions on abortion. After listening to his explanation to the Judiciary Committee, however, 61 per cent agreed that he shouldn't have to discuss his views and some 85 per cent said that his views on abortion should not be the deciding factor. Even a survey of Washington political consultants taken by Fox TV listed Joe Biden as the worst Democrat, based on his TV appearance.

Nonetheless, so long as Democrats remain the majority the game will be run according to their rules. The Senate Democrats, who control 50 per cent of the process, will continue to be formidable. But the White House has to remember it controls the other 50 per cent--and use it. In the case of Clarence Thomas, the Bush Administration was quite effective, thumping for him at every opportunity and making sure Cabinet officers talked him up in their speeches around the country. Had Ronald Reagan shown the commitment to Robert Bork that George Bush has shown to Clarence Thomas, Bork might be on the bench. "It can't get worse for the nominee," says Bob Destro, a former member of the U.S. Civil Rights Commission, who himself went through the wringer for his appointment. "The senators have shown their true colors and they've lost the American people. The only way for Presidents to win is to stand up for their nominees and take their case to the people."