Confirmation: The Rules 

Confirmation: The Rules 

Confirmation: The Rules 

Policy made plain.
Jan. 19 2001 3:00 AM

Confirmation: The Rules 

What matters and what ought to matter.

A wave of sympathy for John Ashcroft swept over me when I saw that People for the American Way had commandeered the Web address OpposeAshcroft.com. Attack Web sites are only to be expected, but attack Web addresses seem like an unfortunate addition to the ritual. (It could be worse. As of this writing, PhooeyOnAshcroft.com, AshcroftIsAJerk.com, and LostHisSeatToADeadMan.com are all still available. So is OpposeNorton.com.)

Advertisement

We've gotten really good at this—we, meaning politicians of both parties, the media, and interest groups across the ideological spectrum. The kind of controversy that has engulfed Ashcroft and Gale Norton is by now a giant machine that can be switched on full blast at a moment's notice. We could do it in our sleep. And indeed, the fates of controversial nominees often depend on whether the efficiency of the machine can overcome the weariness induced by turning it on again. It makes no sense that Linda Chavez's loss should be John Ashcroft's gain, but that is how it tends to work.

One reason these confirmation battles are so unpredictable is genuine uncertainty about what the Senate's standard of "advice and consent" ought to be. There is no clear formula—certainly none clear enough to overcome the forces of randomness and luck. But the fog of confusion needn't be as thick as it is.

Start with the so-called "politics of personal destruction." This phrase, popularized by President Clinton in reference to his persecution by Republicans, is now used most often by Republicans themselves in defense of their own. That is not surprising. The belief that personal foibles and failings are irrelevant in judging a public official tends to follow the parties in and out of the White House. Now it's the Republicans' turn to say that their man's rape conviction way back last July says nothing about his ability to be a superb Director of the President's Commission on Teen-Age Abstinence. And it's the Democrats' turn to insist that a 1956 parking ticket makes you morally unfit to be Ambassador to Monaco.

So what's the right standard? This isn't science. But the severity of the abuse surely matters, as does distance in time. ("When I was young and foolish, I was young and foolish," as George W. Bush wisely put it, oddly enough.) So does relevance to the job in question (e.g., Linda Chavez's domestic labor infelicities). So does lying about it. And lying includes the sort of generalized lie involved in posturing as a family man while having an affair or forgetting all the dope you smoked in college on your way to becoming an anti-drug zealot. One of these factors against you shouldn't matter; two or more probably should.

Advertisement

On to ideology. The standard technique in defending a controversial nominee is to dismiss the personal stuff by saying it's irrelevant, then dismiss the relevant stuff by saying what counts is that he's a fine human being. Advice and consent, check and mate. (Even Robert Bork lost his enthusiasm for strict interpretation of the Constitution when it came to the Senate's right to give "advice" and withhold "consent" on presidential nominees.)

It's also part of the ritual for defenders to insist, however implausibly, that their man or woman is actually mainstream, moderate, pragmatic, nonideological. And of course he or she will obey and enforce the law, including laws they disagree with. This last point is invariably a red herring. Any policy-maker has a large area of discretion in interpreting and administering the law without coming close to breaking or ignoring it.

Nevertheless, the basic rule is, or ought to be, that the ideological judgment about executive branch nominees is up to the president, except in very extreme cases. (General acceptance of this rule is what drives ideological opponents to search madly for personal foibles.) The proper forum for resolving ideological disagreements is the next election, and the attitude of opponents ought to be, "Give him enough rope to hang himself."

Judges are different since they are supposed to be independent of both other branches and are appointed for life. The Bork episode helped to establish the Senate's right to make its own independent judgment on a nominee's judicial philosophy, with only mild deference to the president's preference. And there's a narrow middle ground occupied by officials who are supposed to be at least pseudo-independent. Now that there is no independent prosecutor law to handle executive branch misbehavior—Republicans killed it—that list surely includes the attorney general.

Do the special circumstances of this presidency change the rules at all? Officially, no. We all seem to have agreed that Bush gets to be president with all the trimmings. (There's a magnificent cartoon in the current New Yorker showing a guy sitting at a bar with a huge moneybag and telling another customer, "Oh, sure, it's stolen, but now we have to get on with our lives.") Unofficially, it's hard to object if the new president's more ideological nominees are subjected to 10 percent more skeptical scrutiny. And this figure rises one digit for every time someone says a nominee must be approved because "the people have spoken." Ordinarily a treasured part of the confirmation-battle ritual, it's just too galling in current circumstances.

Anyway, those are the rules. So how do they come out regarding Ashcroft and Norton? Well, that's obvious, don't you think?