A Thief on the Court?

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Stop, Thief!
Assessing the Reaction to the Roberts Nomination
By Tom Engelhardt

At a black-tie dinner for the visiting prime minister of India in the White House State Dining Room that night, [White House Chief of Staff Andrew] Card ran into Justice Clarence Thomas. ‘You’re going to love who the president picks,’ Card assured him.” (Peter Baker, Unraveling the Twists and Turns of the Path to a Nominee, the Washington Post)

When I was young, one of the Philadelphia papers used to run ads for itself in which some poor sap would be hanging from, say, a window ledge over a street and no one in the crowd below would notice because all of them were absorbed in reading the paper. It was an image that came back to me this week as I waited patiently for the outrage to build on the Roberts nomination — and for the Democrats to act. When it was first reported soon after George Bush nominated John Roberts for the Supreme Court that, in November 2000, with the presidential vote in Florida up for grabs, Robert had flown to that state on his own dollar to “volunteer advice” to its governor — and presidential brother — Jeb Bush, I just assumed that howls of outrage would follow from the Democratic camp and that this nominee’s hopes would sink beneath the horizon.

But I forgot, of course, that I was still in George Bush’s America. The information about Roberts’ sojourn in the sunshine state was first reported — or more accurately slipped like a thief in the night onto the inside pages of our newspapers — on July 21st. Now here we are, over a week later, with the story quietly widening, amid a remarkable hush on the subject. It’s as if, when it comes to this nomination, we’re in a house of worship where it’s distinctly impolite for anyone to raise his or her voice. Yes, there are all the front-page pieces on what Roberts may think (or his wife may have done) about abortion, on whether the Bush administration will release various papers on his service to two Republican administrations (including his time as chief deputy to Solicitor Gen. Kenneth W. Starr during the Elder Bush years), on how his career was built and his first million made, on the way the Democrats plan to grill him at his nomination hearings but are exceedingly unlikely to employ a filibuster against him — and then there was that piece by Elisabeth Bumiller of the New York Times, Armies Ready for Court Battle but Are Unable to Find a Fight. (“It was clear that the much-anticipated mother of all Supreme Court battles had yet to be joined and that Judge Roberts had not sparked the kind of partisan uproar that others might have, which would have turned the capital upside down for the summer.”) Nothing to fight over? Hmmm…

Let’s consider that for a moment. But first, a little basic information as it has emerged: At 9 PM on July 19th, the President went on national television and announced the nomination of Federal Appeals Court Judge John Roberts for the Sandra Day O’Connor Supreme Court vacancy. On July 21st, Brent Kallestad of the Associated Press reported that Roberts, contributor of $1,000 to the 2000 Bush election campaign, had ponied up his own money for airfare and, in the midst of the contested Florida recount, voluntarily flown down from Washington to offer advice to the Republicans, and more specifically to Governor Jeb Bush. The Florida governor’s spokesman, Jacob DiPietre was quoted as saying, “He came down and met with the governor briefly and shared with him some of his thoughts on what he believed the governor’s responsibilities were after a presidential election, a presidential election in dispute.”

When it came to the matter of whether this was in any way significant in the nomination process, several factors were cited as lessening its importance. Roberts, after all, had spent “only about a half hour” with the busy governor, and hundreds, of attorneys had “swarmed into the state” for both sides. (Remember, this was at a moment when the governor and the Republican-dominated legislature in Florida were considering a rather unique solution to the crisis — calling a special legislative session to select the state’s presidential electors and so throwing the election to George Bush.) In this initial article, we can see another element about to come into play — forgetfulness. (“Tallahassee attorney Barry Richard, who represented President Bush during the recount, said he does not remember Roberts from that period and said he was not a major participant in the legal battle.”) Just as Roberts himself would soon “forget” his membership on the steering committee of the key Washington chapter of the far-right Federalist Society.

Also on July 21, Peter Wallsten of the Los Angeles Times reported that, while in Florida, Roberts had “operated in the shadows during at least some of those 37 days, never signing a legal brief and rarely making an appearance at the makeshift headquarters for George W. Bush’s legal team”; but that he had indeed “advised Governor Jeb Bush on the role that he and the Florida Legislature might play in the recount battle”; that is, assumedly, in throwing the election to brother George. This piece, too, was filled with people with remarkably frayed memories when it came to Roberts’ role at the time. (“Florida congressman Tom Feeney, then the speaker of the state House of Representatives, said his legal team originated the concept of having the Legislature vote on assigning the state’s presidential electors Feeney said he has no memory of Roberts.”)

That was more or less the news until last Wednesday. Roberts had flown to Florida, consulted with the governor for half an hour, and they had engaged in, as the governor himself would charmingly put it, a “very arcane discussion.” The end.

But like almost all stories that start out small and under control when it comes to this administration, you can put your bottom dollar on the fact that they’re just going to get bigger and messier and uglier as time goes by. And perhaps it’s our good fortune that if Roberts’ mystery time in Florida in 2000 has proved remarkably insignificant news everywhere else, it has been a significant local story in that state — and some good reporters seem to be on the case. On July 27th, Marc Caputo of the Miami Herald suddenly expanded the story exponentially (though again, the national press seems hardly to have noticed).

Caputo tracked down Ted Cruz, a policy advisor to the Bush election campaign in 2000, now the Texas solicitor general. It seems that, unlike every other Republican connected to the Florida events, Cruz still had his memory miraculously intact and so told Caputo that “Roberts was one of the first names he thought of while he and another attorney drafted the Republican legal dream team of litigation ‘lions’ and ‘800-pound gorillas,’ which ultimately consisted of 400 attorneys in Florida.” As it happens, among all those attorneys, Roberts should have proved reasonably unforgettable. After all, Caputo writes, “[s]oon after getting the call from Cruz, Roberts traveled from his Washington office at Hogan & Hartson to Tallahassee to lend advice and help polish legal briefs. Later, Roberts [who had much experience arguing before the Supreme Court] participated in a dress rehearsal to prepare the Bush legal team for the U.S. Supreme Court… [He was] legal consultant, lawsuit editor and prep coach for arguments before the nation’s highest court, according to the man who drafted him for the job.”

Now, before any further news comes out and no one notices, let’s try to put this into some kind of perspective — the kind that might lead not just to a politely raised eyebrow but to a raised voice. Just for a moment, let’s imagine our world in reverse.

He’s waited patiently for almost five years, and now — finally — President Gore, in his second term in office, has his long-desired chance to nominate a Supreme Court justice and so tip the court decisively in his direction. Thanks to the infamous 5-4 Supreme Court decision in 2000 that threw the disputed Florida vote recount to Gore, the Republicans still nurse bitter feelings. Five years later, they have no doubt that Election 2000 — in which their candidate won the majority popular vote — was stolen from them by the dreaded and hated “Democrat Court.” Gore nonetheless seizes the moment, appears on national television in prime time, and announces his nomination of a sturdy-jawed woman of color, an exceedingly liberal lawyer, a Clinton favorite and former aide to Attorney General Janet Reno, whose name appears on the founding lists of (though she now claims she has no memory of “membership” in the organization). Soon after her nomination, it is reported that, in 2000, when the Florida case was in the balance, she paid her way to Florida and played a behind-the-scenes role on the David Boies legal team, worked in the shadows, and spent half an hour in a “very arcane discussion” with the busy then-candidate Al Gore. The people around Gore at the time now claim not to remember much about her role and are sure that means it was insignificant.

Okay, what would the Republican Party and the right-wing do (and I give you far less than three guesses)? First of all, their media universe would crank up to the decibel of a garbage truck smashing trash. Rush Limbaugh would be denouncing the “feminazi” Gore nominated and railing against her as the chief election-stealer of 2000; Fox would be fair-and-balancing her out the door; right-wing bloggers would be going nuts; right-wing think-tanks would be issuing position papers on the history of the filibuster and how to use it; the National Review would have a “Florida Court: Day of Shame” cover issue; the Republican National Committee would have issued scalding talking points on the question of whether this nomination was, in fact, a court-packing, future-election-stealing, impeachable offense; and in Congress, the Republicans would be demanding immediate investigations, refusing to attend congressional sessions on the nomination unless the Gore administration released the candidate’s Clinton-era governmental papers and the full records of her role in the Gore Florida deliberations of 2000. They would, of course, be demanding that the President withdraw his nomination or face an unwinnable filibuster. And that would probably just be for starters.

It is remarkable really. If the Democrats were an actual opposition party, if they were really a party at all, the Roberts nomination would be an open-and-shut case, no need to consider Roberts’ record on abortion or anything else. Why, after all, would a party that believed a presidential election had essentially been stolen from it by the Supreme Court in 2000 (and perhaps again in 2004 via voter suppression and other techniques in Ohio) agree even to consider the candidacy of a legal partisan who clearly had an unknown but all-too-real hand in taking the election from them, or do anything but demand the withdrawal of his nomination on the threat of a sustainable filibuster? As the other political party, don’t they even care about futures elections? It seems, however, that the Democrats in Congress, after much shuffling and hemming and hawing, will take the sharpened razor handed them by the President and slit their own wrists.

Tom Engelhardt, who runs the Nation Institute’s (“a regular antidote to the mainstream media”), is the co-founder of the American Empire Project and the author of The End of Victory Culture, a history of American triumphalism in the Cold War.

Copyright 2005 Tom Engelhardt