I have not had Cliff's experience with a Supreme Court confirmation, but my recent experience handling the confirmations of more than 125 lower-court judges reinforces his impression that every possible issue is important. The process has become even more invasive and divisive since the early 1990s, which from my vantage point seem like the good old days.
There are several reasons for this devolution. The first is technology. The rise of the Internet and the blogosphere has created an echo chamber that is much more instant and loud than the old Beltway-heartland connection through traditional media. Technology has also changed how information is gathered. There is no need to keep files anymore because Google is the biggest filing cabinet out there. And the video-rental records that featured in the confirmation of Justice Clarence Thomas seem almost quaint compared to the amount of personal information accessible these days.
Second is the stridency and sophistication of outside groups, on both sides. The immediate and reflexive opposition to Roberts from extreme interest groups last night proves Cliff's point that even the most plain-vanilla candidate will face heat. Last night's reaction, based on so little foundation, was comical bordering on ludicrous. I read in the papers this morning a comment from an environmental activist criticizing Judge Roberts for writing that a particular species of toad "for reasons of its own lives its entire life in California." The activist thought that this betrayed a flippant attitude toward the environment. Come on! If I had Dahlia's wit, this would be the perfect place for one of her verbal daggers. As it is, I can only bemoan the degradation of the confirmation process.
The outside groups have a financial incentive as well as an ideological interest in fanning the flames. By being unreasonable, they attract attention and dollars to their parochial causes. Action prompts reaction, so groups on both sides rake in the money and use it against each other. And the hapless nominee, who by protocol makes no comments outside the confirmation hearing, watches his record distorted, integrity questioned, and family saddened for political sport.
The third explanation for the devolution of the confirmation process is that Washington, D.C., is just different than it was in the good old days I referred to. Last year former Clinton Chief of Staff John Podesta and I did a colloquy at Georgetown Law Center (where we both teach) at which we agreed that politics in this town is as ugly and personal now as it has ever been. Coming from the two of us, this is both commentary and self-criticism, and I think that we are fast approaching the point where there has to be some bilateral disarmament to prevent mutually assured destruction. The recent passing of Washington lawyers John Pickering and Lloyd Cutler reminds us of the need for a new generation of wise old men and women to keep the town in check.
But, what were we talking about? Oh, yes; John G. Roberts Jr. That we are even wondering whether he would be controversial is a sign of these turbulent times. The man came straight from central casting for a good, honest judge. He is the mirror image of his equally able and affable colleague, Merrick Garland, a Clinton appointee. Both were clerks to the legendary Judge Henry Friendly, both are dedicated public servants, both are restrained in philosophy and personality—each just happened to be nominated by presidents of different political parties. I am sure I would disagree with some of Judge Garland's opinions, just as some may disagree with Judge Roberts' decisions, but both are thoughtful, hard-working, and honest judges.
I have known John Roberts for a number of years and handled his confirmation to the D.C. Circuit. Despite being "noncontroversial," despite having bipartisan support, despite a strong letter of endorsement from 150 of the top lawyers who know him best, he was held up for two years before being confirmed. Through it all, he was unflappable. Same deliberate manners. Same measured tones. Same warm smile.
And what a history. Growing up as the son of a plant manager for Bethlehem Steel, Judge Roberts worked in the plant during the summers as a card-carrying union member. He was captain of his high-school football team and a wrestler. He has a stable, happy marriage. He and his wife adopted and raised two beautiful children. (I doubt that we will soon forget the footage of his saddle-shoe clad son dancing in front of the podium while the president nominated his dad.)
John Roberts is such a good judge, decent human being, and unquestionably superb choice that the process of his confirmation will be less a test of his qualifications than a measure of our own institutions, values, and humanity.