The Washington Times
Why don’t we let Jack Burden, the narrator of Robert Penn Warren’s “All the King’s Men,” have the first word this week? It’s the famous passage in which his boss, Willie Stark, the ambitious and corrupt governor of Louisiana modeled on the legendary Huey Long, makes a bid to have the last word on politics and the soul of man: “It all began, as I have said, when the Boss, sitting in the black Cadillac which sped through the night, said to me (to Me who was what Jack Burden, the student of history, had grown up to be) ‘There is always something.’ “And I said, ‘Maybe not on the Judge.’ And he said, ‘Man is conceived in sin and born in corruption and he passeth from the stink of the didie to the stench of the shroud. There is always something.’ ”
OK, I’ll bite: Maybe not on the judge.
The Senate’s “advise and consent” procedure for Judge Samuel Alito for the seat on the Supreme Court he will soon occupy, like the confirmation process of the preceding nominee, now Chief Justice John Roberts, was characterized by a thoroughgoing search through the public record and through as much non-public material as people could get their hands on.
Even federal District Court nominees get a thorough look these days, and the scrutiny becomes withering for nominees at the appellate level, to say nothing of the Supreme Court. Democratic senators and staff and interest groups bird-dog the nominees of Republicans with neither less nor more zeal than Republican senators, staff and interest groups apply to the nominees of Democrats.
What are they looking for? “Something.” And, of course, in a number of cases, “something” has turned up. There’s no real need to go over that ground again here. In some cases, “something” has kept someone off the bench; in others, nominees have made it through despite the discovery of “something.” That in some cases, there will turn out to be “something,” is not in doubt. But what is, I think, very much in doubt is Willie Stark’s arch dictum, “There is always something.”
Always? Did Democrats just miss it in the case of Chief Justice Roberts and Judge Alito? Did Republicans fail in their task of scrutinizing Justices Stephen Breyer and Ruth Bader Ginsburg? Or is there something more deeply and elementally wrong here, namely, the premise that “there is always something”? If the problem is with the premise, then to the extent that the confirmation process itself is built on the assumption that “there is always something” – and proceeds from the announcement of the nominee to the final vote in the Senate as if finding “something” is merely a matter of a little more time, effort or cunning – we have a procedure that is likely over time to do more harm to the senators who indulge the premise than to the nominees that come before them.
Jack Burden, elaborating on Willie Stark’s credo, says, “There is always the clue, the canceled check, the smear of lipstick, the footprint in the canna bed.” But what if that’s not the case? What if there’s nothing more than a reasonably upstanding life and career characterized by achievement and excellence? What if, in fact, a process predicated on the assumption that “there is always something” has had the effect of deterring most of those on whom there actually is “something” from participating?
Look, no big deal, you can probably have a very successful legal career and even reach the pinnacle of private practice notwithstanding the occasional “smear of lipstick” or the footprints you left in the flowerbed. Just don’t figure on capping it off as a federal judge.
And if, indeed, your ambitions run to service in the judiciary – if you think your chances may even include a slot on the Supreme Court – then, in this environment, you would be a fool to be anything but exemplary, professionally and personally. Why put yourself through a process designed to review everything about you that is reviewable in the knowledge that there is “something” reviewers will find? Well, perhaps vanity, a sense of personal exceptionalism. Some will still feel that and perhaps think they can get away with something. Which is why, in ordinary circumstances, a competent White House operation will itself screen for signs of that quality before putting a name forward.
The result may be nominees a little less colorful than some of those from the past. Certainly neither Judge Roberts nor Judge Alito gave an indication of even latent flamboyance. But solid they were and untouchable as well. “Something”? There was nothing.
And those Democrats who persisted in acting like there was “something” waiting to be badgered out of Judge Alito ended up with little to show for their efforts but the most noteworthy moment of the hearings, when Mrs. Alito left the room in tears. If they had been smarter, they would have realized that the search for “something” sometimes turns up nothing. That’s what occurred to most Republican senators with Justices Ginsburg and Breyer.