Patrick B. McGuigan
NOTE: This essay is adapted from the prepared text of an academic paper presented at the annual Sovereignty Symposium in Oklahoma City.
OKLAHOMA CITY – I am an Irishman, so I make my points by telling stories. Here are a couple.
On an Ash Wednesday in the late 1980's, shortly before noon I was trotting toward St. Joseph’s on Second Street, N.E., on the Senate side of Capitol Hill in the nation’s capitol.
Like many others who resided in Virginia or Maryland but worked on the Hill, for the start of Lent we were honorary parishioners there (or at St. Peter’s on the House side).
After years of Holy Day Mass-going at St. Joe’s I expected a reverent, proper yet expedited liturgy, leaving attendees time to grab something to eat within the noon hour, and, a plea from the pastor. Ash Wednesday services were his highest attendance of the year – and, not incidentally, the highest cash collection at any Mass.
As I neared the old church, I saw moving slowly up the front steps two men I knew. Walking slowly -- his right hand on the middle rail, and his left hand extended to his companion -- was William Brennan, the liberal legend whose judicial philosophy I’d spent the last few years opposing. He was getting feeble and moved carefully.
Standing to the left, on the elder justice’s left as Brennan clutched his cane, was Antonin Scalia, walking patiently and solicitously. When they got to the top step, Brennan switched the cane to his right hand. “Nino,” with his left hand, clasped the old man’s left hand, placing his right hand gently around Brennan’s lower back.
The pair walked into the Church, then three-quarters full. They moved slowly past the priest and servers, down the center aisle to a pew at the front left, where they sat. The priest then nodded to his servers and looked to the organist, and Holy Mass began.
After the Gospel, the pastor gave his annual plea, and offering baskets filled with bills. At distribution of Ashes, and then for Communion, Scalia took the old man’s hand, put his right hand under Brennan’s armpit, to rise and move toward the altar, side by side.
After Mass, they prayed for a bit, then arose to make their way out the door and down the street for the brief walk to the Supreme Court.
Brennan was the only justice who always replied with a personal note when he received copies of my legal books. He assured me he would consult my words as he grappled with cases. I knew he would often disagree with me – and with Scalia, who had joined the Court in 1986.
Still, words mean a lot. That is why I incline toward the interpretative end of the spectrum when it comes to the role of the judiciary, and the wisdom of the Madisonian design the founders bequeathed to us.
Besides, now I’m the guy who needs help on stairs. Perhaps there will be either a kindred conservative spirit or a kindly liberal about to assist me.
Another brief story, from a little bit earlier in my time in the nation's capital.
Generally a “liberal,” Brennan’s ardent belief in free speech led him to favor a small pro-life group in one of the important political speech cases of the late 1980s. By 1986, I had for several years been engaged in a series of books – and frequently in direct political action – seeking to advance a judicial approach that could be described as more or less coinciding with Scalia's, and almost matching Robert H. Bork's.
But this tale touches on William Rehnquist, and, once again, William Brennan.
I organized the outside groups who supported Rehnquist's confirmation as Chief Justice, secured with an unusually close Senate vote of 65 to 33. The same months that brought Rehnquist's contentious elevation to that estimable post also brought Anonin Scalia's unanimous confirmation to the High Court.
Not long after Rehnquist's confirmation as Chief, I was walking down the hall in the one of the Senate office buildings. I heard a friend calling out my name, his voice echoing down the mostly vacant hallway.
He rushed up to me, saying, “That son-of-a-bitch Rehnquist! First time he has a chance to do us a favor, and he stabs us in the back.” I was taken aback, but after a moment's reflection, I asked, “Massachusetts Citizens for Life?” Federal Election Commission vs. Massachusetts Citizens for Life, decided December 15, 1986 – That's what had my friend riled up.
I proceeded to defend Rehnquist, explaining that in that case, the question before the Court was whether or not the government could restrict the political speech of Massachusetts Citizens for Life. The group had violated the now quaint-seeming distinctions between tax-exempt activities of a “think tank” nature, and those of an advocacy (or lobbying) nature.
In my layman's summary, officials sought to punish (and for a time seemed likely to succeed) the citizens for life group for using – inadvertently or not – educational dollars to lobby for a substantive outcome. Justice Rehnquist, a conservative but also a 'majoritarian,' believed the government could act on the restrictions on political speech that had been intended to keep educational money (at the risk of oversimplification, 'c 3' dollars) from being converted into 'c 4' (lobbying) dollars. For this reason, Rehnquist was one of four justices who concluded Massachusetts Citizens could be made to pay a price.
Justice Brennan, a liberal and a free speech purist, not only took a different view, he also wrote the opinion that affirmed protections for Massachusetts Citizens for Life – a group so small that opposition to abortion could be considered absolutely central to its purpose for existence. A group, therefore, protected under the U.S. Constitution.
Both men cast votes against type, at least in the mind of my conservative friend there in the Senate hallway. But in truth, as the late Oklahoma Supreme Court Justice Marian Opala could explain to you, both Bills – Rehnquist and Brennan – were being true to their view of the extent, and limit, of judicial power.
Indeed, Brennan's reasoning for freedom of speech and the rights of association led him, not much later, to write the majority opinion in the case of Communication Workers of America vs. Beck (June 29, 1988).
In that instance, conservative labor union member Harry Beck successfully asserted a right to compel an accounting of his union's use of compulsory dues for political purposes to which he objected. That right, embedded in statutes, was affirmed by Brennan.
I never thought of Bill Brennan as my enemy, although I sometimes feared Patrick Buchanan correctly described him as the most powerful American man in the decades after World War II.
Whether in legal interpretation or Scriptural exegesis, in literary analysis or daily discourse, I believe words have meaning. American conservatism is rooted in respect for those who fashioned a limited government, separated powers and Federalist diffusion of authority.
Pondering the U.S. Constitution and its relevance leads to critical scrutiny of the Supreme Court and its role -- good and bad, progressive and retrograde, conservative and non-interpretive.
The conflicts that have marked American jurisprudence throughout our history might, in some minds, be distilled into the debates between Scalia and Brennan (and their successors) over the future of constitutional jurisprudence. Yet, that distillation has its limits.
Generally a “conservative,” Scalia nonetheless was on the “wrong” side of a few cases over the years. The flag burning case of 1989 – in which he joined the majority finding flag burning a form of protected speech – was one of his rare errors.
On the big stuff, Brennan and Scalia were usually in opposition during the four years they over-lapped, yet Scalia called him “probably the most influential justice” of the Twentieth Century.
Since those seemingly Halycon days of merely three decades ago, we have traveled far afield from the ability to recognize the merits in opposing approaches to judicial interpretation – whether of a Byron White (dissenting, with Reqhnquist, in Roe vs Wade)
or even a John Paul Stevens (who joined Rehnquist in patriotic dissent).
Among conservatives, serious concerns about the state's judicial selection patterns emerged late in the last decade. Not surprisingly, Oklahoma City University Prof. Andrew Spiropoulos most articulately expressed what many considered the need for significant reform or abolition of the Judicial Nominating Commission. In 2008, he wrote:
“[W]e give the organized bar far too much of a role in selecting judges, and the elected representatives of the people too little.
“For our two high courts and the civil court of appeals, the governor must choose a candidate from a list of three provided to him by the Judicial Nominating Commission, a 13-person body, of whom six are elected by members of the Oklahoma Bar Association. While it is true that a one-vote majority is held by the non-lawyer members of the committee appointed by the governor, it is highly unlikely, as has been demonstrated in other states, that the non-lawyer members will all vote to reject candidates unanimously supported by the bar's supposedly expert representatives. One non-lawyer vote is all it takes for the bar's candidate to get the nod.
“One must also keep in mind that, under the constitution, if the governor refuses to select one of the three candidates submitted by the Commission, he loses his opportunity to choose the judge and the chief justice makes the selection instead. The nominee need not be confirmed by the state Senate or any other body. In other words, the lawyers, not elected officials, effectively control the nomination process. As I began to look into these matters, I was surprised to discover that, other than Kansas, no other state gives the organized bar as much power in selecting its highest judges as Oklahoma.
“What's the problem with the bar playing such a large role in selecting judges? When I was a young, naive lawyer, I would have said there's no problem at all. Indeed, I would have embraced the idea, as I have found (and still find) the idea of even nonpartisan judicial elections profoundly unattractive, and the idea of partisan judicial elections deeply disturbing. I believed then (and I still believe it once was true) that the best lawyers by dint of their education, training, and experience can and do put aside their personal interests to serve the common good. It has been my experience since then, however, that the organized bar, while it claims to adhere to the ideals of disinterestedness and service to the common good, in reality operates no differently from any other interest group. The organized bar seeks to serve its own selfish interests.”
It was in 2012 that some conservative reform proposals took formal shape in Oklahoma. The state Chamber supported an evaluation of both Supreme Court justices and civil appeals court judges on that year's retention ballot.
In all, 145 cases were included in analysis of the state High Court. Neil Coughlan of the Judicial Evaluation Institute of Washington, D.C. guided, and defended in interviews with me and other reporters, the assessment. Six areas of jurisprudence touching economics were studied, including employment, medical malpractice, product liability, insurance, other liability issues and workers’ compensation.
Cases included in the study dated from 2006 to late summer 2012, and were scored equally.
Coughlan said no added weight was given to particularly significant outcomes. Coughlan said he and other analysts assume “every judge is intelligent and wants to be fair.”
While the analysts looked for instances where justices disagreed, leading to inclusion of a number of cases where the nine-member court had as many as three or four dissenters, unanimous or near-unanimous rulings were also part of the study. Coughlan observed that often “justices aligned on civil liability are not necessarily aligned on other issues.”
Rated the highest, or 'best,' in the group's study were Chief Justice Steven Taylor and Justice James Winchester, each getting 69 percent.
Justice Yvonne Kauger had a 31 percent rating, while James Edmondson had a 32.
In addition, Justices Douglas Combs and Noma Gurich, had 'provisional ratings of 22 and 32, respectively. (“Provisional” because of the comparatively short time each had been on the state's highest court.) Other formal rankings and percentages for the justices were: John Reif, 30; Joseph Watt, 26 and Tom Colbert, 21.
Aside from scholarly criticism like Spiropoulos, political changes likely contributed to the criticical views of a court that had six members appointed by Fallin's predecessor, Democratic Gov. Brad Henry.
As Republican power in the Sooner State rose over the past decade, many conservatives and business groups viewed critically a range of state Supreme Court decisions, including the 2009 case, “AT&T v. Oklahoma State Board of Equalization.” In that one, justices ruled that “intangible” property could be assessed for purposes of ad valorem taxation.
Business groups feared enforcement of the decision could cost state businesses massive new property tax levies. Forty of the 50 states do not tax intangible property. While the Legislature had staved off the decision’s enforcement for three years, State Question 766, on the November 2012 ballot, was designed to overturn the AT&T case.
“Sholer v. ERC Management Group LLC” (2011) was another case that drew the ire of business groups. A Court majority ruled property owners (in this case, an apartment complex) could be held liable for injuries previously deemed “open and obvious” and therefore not subject to tort.
Fred Morgan, president of the Oklahoma State Chamber, said that because “judges are on retention ballots, voters have a right to more information before casting their ballot.”
Brady Henderson, an attorney with the state chapter of the American Civil Liberties Union, cautioned, “To be truly informed about our court system, citizens must understand the limitations of ratings and look beyond the numbers.” Still, Henderson told me in an interview, “There is nothing wrong with monitoring and evaluating the performance of public officials, such as the justices or our state Supreme Court. On the contrary, it is an important part of civic engagement.”
Henderson argued for retention of all the justices up for confirmation that year.
Agreeing with him were a number of conservatives, including state Rep. John Bennett, R-Sallisaw, and Charlie Meadows of the Oklahoma Conservative PAC.
Oklahoma voters retained all of the justices, as well as the appeals court judges facing scrutiny.
At the same time, voters approved S.Q. 766, in essence reversing the AT&T case. That put into law protections for “all intangible personal property from property tax. No person, family or business would pay a tax on intangible property.”
For a season or two, relative peace reigned in such matters, which is not to say the issues were ignored.
After the 2012 election, conservative critics of a range of state Supreme Court decisions began to press further for specific changes in the judicial selection and retention process.
In 2014, Renee DeMoss, president of the Oklahoma Bar Association, argued there was no need to “fix what isn't broken.”
On the other side, I return to Prof. Spiropoulos, as a man of consistency. In 2015, he repeated the essence of his analysis after the JNC limited Governor Fallin's options.
He wrote: “The state’s Judicial Nominating Commission is facing political fire for presenting Gov. Mary Fallin only Democrat nominees for an open judgeship. The governor is also miffed because the JNC submitted only two candidates, when it is required to present three. She wants the commissioners to restart the process. Other Republicans say they are fed up and want to abolish the JNC.”
He continued, “We don’t need reform because lawyers are more partisan than other people. We need it because, like everyone else, we’re a special interest group that seeks to establish institutions and install officials that will increase our money and power. Major League Baseball wouldn’t dream of letting pitchers pick their umpires – lawyers shouldn’t be directly involved in choosing theirs, either.”
The contrary case – in defense of the state's status quo – has been advanced by my friend Julie Knutson, chief executive officer of the Oklahoma Academy. In an essay recently published in The City Sentinel, Knutson detailed the case against major changes in the state's judicial selection process. In doing so, she evoked “years of damage control” that came after scandals in the 1960s “that first brought to light what happens when Oklahoma’s highest court can be bought. The correction to end the judicial scandals of the '60s entailed moving from an election process to a selection process.
“Oklahoma’s court system is unique in that, unlike most states, Oklahoma has two courts of last resort -- the Oklahoma Supreme Court, which determines all issues of civil nature, and the Oklahoma Court of Criminal Appeals which decides all criminal matters. Members of these courts are appointed by the Governor from a list of three names submitted by the Judicial Nominating Commission (JNC).
“The JNC was established as a part of the Judicial Department in 1967 by an amendment to the state Constitution under Gov. Henry Bellmon, during his first term. …
“Of the six non-lawyers appointed by the Governor, which shall include at least one from each congressional district, none have been admitted to practice law in Oklahoma or have any immediate family member who has been admitted to the practice of law in Oklahoma or any other state. Of those Commissioners named by the Governor, not more than three shall belong to any one political party.
“The state Constitution limits the number of members who belong to any one political party, and members cannot hold any public office by election or appointment, or an official position in a political party. The JNC was designed to be free from party influence. In the 1960s, several Oklahoma Supreme Court justices were removed from office due to taking kickbacks and bribes for favorable court rulings and decisions. This in turn caused the federal government to come to Oklahoma to clean up the corruption scandal which led to the movement in Judicial Reform.”
Does Knutson's narrative of what took place in Oklahoma's days of yore necessarily make the case against changes in the state's judicial selection and retention process, and/or for the Judicial Nominating Commission?
Some of the best known decisions that have frustrated and in some cases angered conservatives relate to abortion policy. But the one that seemed to really set off my kindred was the Ten Commandments monument decision of 2015.
By a vote of 7-2, deciding a case brought by the American Civil Liberties Union (ACLU), the state justices ruled that the monument which at the time rested at the northeast corner of the Capitol violated language in the Oklahoma state Constitution. This matter has been well-rehearsed, but a summary of the contrasting views might be helpful.
State Rep. Kevin Calvey declared, “Our state Supreme Court is playing politics by issuing rulings contrary to the Constitution, and contrary to the will of the clear majority of Oklahoma voters. These Supreme Court justices are nothing more than politicians in black robes, masquerading as objective jurists.
“This ruling is the Court engaging in judicial bullying of the people of Oklahoma, pure and simple. It is time that the people chose jurists, rather than letting a tiny special interest group of lawyers at the Oklahoma Bar Association dictate who can and can’t be a judge.”
The ACLU's Henderson defended the result, commenting, “The framers of Oklahoma’s Constitution, like the founders of our country, understood that our religious choices are our own to make, not the government’s. …
“The decision is a victory for all Oklahomans who value the simple freedom to come to their own conclusions about matters of conscience. The Court’s ruling affirms the time-honored idea that my faith is a relationship between me and God, not me, God, and my local government.”
Among many but not all conservatives, there is a belief is that results might be different if the Court consisted of more jurists with a Frank Keating or Mary Fallin philosophy, and perhaps fewer than the six put on the bench by Brad Henry. But given the differences in evaluations of Henry appointees (see above) is that necessarily the case?
Late last summer, Republicans protested loudly when the JNC forwarded only two names to Gov. Fallin for a judicial vacancy in Pottawatomie County.
Rep. Justin Wood, R-Shawnee, Calvey's ally in some criticisms of the JNC, said that situation demonstrated the JNC's problems: “It's unfortunate that two quality applicants were shut out of the nomination process for what seems to be nothing less than partisan bias. It's also sad that the two qualified applicants sent to the governor for possible appointment are caught in this injustice, as well.”
This brings us to 2016.
Early this year, it appeared a comprehensive reduction in judicial power might be in the offing. Former Speaker of the Oklahoma House Steve Lewis, a Tulsa Democrat who presided over the lower chamber 1989-1991, pointed to a total of 20 bills filed in either the House or Senate to change the ways in which members of the three appellate courts are selected.
Of the various proposals, companion measures from Senate President Pro Temp Brian Bingman, R-Sapulpa, and House Speaker Jeff Hickman, R-Fairview, were the most significant.
In a statement sent to me and other reporters, Pro Temp Bingman made the case for his version of the reform when it passed through the Judiciary Committee in the upper chamber: “The current judicial nominating commission puts too much power and influence in the hands of the state’s trial attorneys. The anti-business tone of the court is a constant reminder of the need for judicial reform.
“Reforming the judicial nomination process takes away the outsized influence of trial lawyers and puts power into the hands of the citizens of Oklahoma by allowing the Legislature to approve judicial nominations. Equally important, these reforms will allow the governor to select judicial appointees from a more diverse and qualified list of attorneys.”
At the risk of oversimplification, Bingman would have created a process more like the federal system, with gubernatorial nomination/selection, and Senate confirmation.
Speaker Hickman would fashion a process that while retaining the role of the JNC – including the House Speaker's appointees -- would have assure the state's chief executives received the names of all potential nominees who met the “constitutional and statutory qualifications” for appellate courts.
In the end, the Senate advanced to the House a version that would require governors to submit a nominee to the JNC, which would then evaluate that person on a scale ranging from one to ten.
Hickman, likely perceiving a loss of influence for the House but also responding to concerns in his caucus about other aspects of the Senate plan, told The Tulsa World, “It would be very unlikely that the changes wanted by the Senate could ever be approved by the House. I don’t think there is a reason for this bill to move forward because there are not enough votes in the House to approve it.”
That is where things still stood as the final week of the regular 2016 session began on May 23.
Changes to the JNC might not be be on the November 2016 ballot for popular consideration. But many will continue to find appealing the idea that we need to make Oklahoma's selection and retention process more like that federal one.
I wonder if that is wise – either for justice in the Sooner State or conservative desires for different legal conclusions on policy controversies?
For the sake of caution and context, let's review the record.
In my early years in Washington, U.S. Sen. Joe Biden, D-Delaware, actually said some sensible things about the judiciary, the presidency and the Senate roll in confirmation.
Here's one example (McGuigan and Weyrich, Ninth Justice: The Fight for Bork, page 227, footnote 9):
“I think the advise-and-consent responsibility of the Senate does not permit us to deprive the president from being able to appoint that person who has a particular point of view unless it can be shown that his temperament does not fit the job, that he is morally incapable or unqualified for the job, or that he has committed crimes of moral turpitude. … I do not think that under the Constitution I have a right to say I will not vote for someone to be on the Supreme Court … because I disagree with the view that he holds on a particular issue.”
At the time of the nomination of U.S. Rep. Abner Mikva, D-Illinois, to the U.S. Court of Appeals for the District of Columbia Circuit, Sen. Biden said (McGuigan and O'Connel, eds., The Judges War: The Senate, Legal Culture, Political Ideology and Judicial Confirmation, Free Congress Foundation, 1987, page 22 footnote 41):
“Although a nominee's personal views on matters likely to come before him are relevant, they are not nearly as important as the more elusive qualities of demeanor and personal temperament. Specifically, I do not believe that elected officials should be disqualified for service on the Federal bench simply because during the course of their political careers they have advocated positions with which some disagree.”
Biden said, "Say the administration sends up [Robert H.] Bork, and, after our investigations, he looks a lot like Scalia. I'd have to vote for him, and if the [special-interest] groups tear me apart, that's the medicine I'll have to take."
Alas, the exigencies of presidential politics soon changed ol' Joe.
During confirmation hearings in the 1980s, he said to one nominee
[Judges War, page 22], “I think you are a decent and honorable man, but I do not think I can vote for you because of your political views.”
Then, after Lewis Powell resigned in late June 1987, Biden's evolution was complete (Ninth Justice, page 6, note 10, citing The Washington Times, June 29, 1987, page A1).
During an interview on CBS' “Face the Nation,” he said, “The Constitution says the president has the right to choose whoever he wished. Conversely it also indicates that the Senate has equally as much right to insist on ideological purity as the president does.”
In such a view, what happens to the “conservative” decisions of a William Brennan, or the “liberal” decisions of a Rehnquist or Scalia? As Collin Levy of The Philadelphia Inquirer recounted:
“By the time Clarence Thomas's confirmation hearings came around, Mr. Biden's modus operandi was well known. In his book, 'My Grandfather's Son,' Justice Thomas recalls that before the Anita Hill inquisition began, Mr. Biden called him and said 'Judge, I know you don't believe me but if the allegations come up I will be your biggest defender.' 'He was right about one thing,' Justice Thomas wrote, 'I didn't believe him.'”
In the late 1980s, Biden refused to advance the nomination of Bernard Siegan, a libertarian scholar who was under consideration for the Ninth Circuit Court of Appeals.
In 1992, Biden delayed the nomination was another nominee, Edward Carnes, for 18 months, eventually leading to a backlog of 64 federal judicial nominees in that presidential election year.
Biden doesn't like all this being called a “Biden Rule.”
Still, as reporter Carl M. Cannon observed, “Joe Biden? He voted against Rehnquist, Bork, Thomas, Roberts, and Alito — and said publicly he deeply regretted voting for Scalia.”
Barack Obama and Hillary Clinton obviously drew inspiration from the Biden model.
As a United States Senator, Clinton voted against most, but not all, of President George W. Bush’s nominees to the judiciary. At the higest level, she opposed Chief Justice John Roberts and Justice Samuel Alito, and tried to filibuster Alito's confirmation. As for results-oriented jurisprudence, she has explicitly promised to appoint justices who will vote to reverse Citizens United, and Shelby County v. Holder .
Former Secretary of State Clinton remains proud of her attempt to stop Alito's confirmation.
This year, soon after she assailed Republican Senators for refusing to consider the nomination of President Barack Obama's latest High Court nominee, a video of then-Senator Clinton emerged, capturing her as she bragged about a determination to stop conservative nominees.
Obama, our president now, would obviously like to have his nominee considered. That may contribute to his regrets over the filibuster against Alito
– or at least the way in which he filibustered.
Talking about the Senate's role in confirmation in recent decades -- and Senator Obama's contributions to the woeful status quo -- is not meant to detract from scrutiny of President Obama's direct criticisms of the High Court early in his presidency.
To point this out is not necessarily to make an affirmative case for the apparent Republican choice to replace Obama.
Who among those who love the rule of law can applaud Donald Trump's expressed opinions to limit press freedom, and to take aim at news organizations that have criticized him? A man who says he wants to limit libel law protections has smeared the father of one opponent, implying his participation in an assassination.
I am a reporter who clings to the Madisonian design for liberty, including protections for journalists. Trump is no conservative. In fact, he regularly attacks conservatives who disagree with him on matters of well-defined principles of operation.
What about Trump's threats for investigations against those financing independent expenditures opposing his campaign, or his declared intent to subject certain ethic or religious groups to higher scrutiny under the law, and his undefined (which is to say, unprincipled) philosophical moorings for legal policy
There is at best slight comfort to be found in Trump's recent provision, with an eye to the general election, of a mostly qualified group of potential Supreme Court nominees.
To be clear, we have a federal judicial selection and retention system, and I'm pretty sure we're stuck with it. But in its present condition it might not make the best model for Oklahoma's future judicial selection and retention process.
So, what's to be done? The apparent demise of significant reforms to the Judicial Nominating Commission (JNC), at least in 2016, could be a blessing to us all, including for conservatives. Sure, it might seem a blessing in disguise, but national events should encourage us to take a fresh look at inclinations about how to make the system better.
As for Oklahoma defenders of the JNC, I urge caution.
The status quo is unlikely to last forever. Perhaps a look at possible term limits for jurists – 18 years, perchance? – would address frustrations over the absence of even one Supreme Court nominee during the current governor's tenure.
I believe most criticisms of the most controversial court decisions have merit, but that doesn't mean I want less independence for the judiciary.
Not long after I returned to Oklahoma in 1990, I saw my friend Antonin Scalia during a visit to my old haunts in the nation's capital. It was likely at a Federalist Society meeting, but might have been some other gathering. I expressed friendly unease and disappointment that we rarely communicated as we had during my decade in Washington.
Nino, ever blunt, looked at me kindly and said succinctly: “Pat, my entire focus these days is learning how to count to five.” That got my attention. He promptly softened the sharpness with a witticism I've since forgotten.
Later, I had another moment with Scalia, and I remarked on Brennan's retirement. I had thought he might serve until he died. I quizzed Scalia, who said of our liberal friend (he stepped down in 1990), “I think Bill just got tired.”
I remain a sentimental Irishman, attached, perhaps now even more devoted to assumptions of good will and of well-meaning in the action or inaction of jurists across the spectrum.
I am concerned that some cures to judicial flaws, state and federal, might be worse than the disease.
Which brings me to some comments incorporating my ethnic roots. These may or may not help make my point.
You know why God made Irish whiskey, don't you?
Right – so we wouldn't rule the world.
In this age of political correctness, I still believe it is healthy to tell a joke, at least on yourself, to make a point.
One night in the fall of 1987, my friend Dan Casey and I gathered at the Joseph Story Society, a short walk away from the back entrance of the U.S. Supreme Court. From June 26 of that year (the day of Lewis Powell's resignation from the Court) through October 23, we had labored mightily in support of Judge Robert H. Bork's confirmation to the High Court.
We lost that noble cause. At 58-42, the vote was not even close.
In future moments of good humor, Bork himself commented on his inadvertent contribution of his last name, in the form of a new verb for our common language: “To bork” – attempting to describe the disconnect between the substance of his views and the ways his philosophy was distorted for political benefit of the Left.
For the first time in American history, the high-powered weapons of television advertising and distorted soundbites were applied directly to a Supreme Court confirmation process. We were outspent at least 10-1.
Millions of dollars shifted Senate sentiment against the man Dan, who ran the American Conservative Union, and I, as the legal policy guy at Coalitions for America, considered the closest thing in the Twentieth Century to James Madison himself.
Dan and I anticipated, beginning that night, returning to our respective wives and children at a much earlier time than had been the case during the long weeks of 18 or even 20-hour days which had just ended. And, as we drank, I asked Casey what we were going to do about the beards.
Some background: Early in the Bork fight, after President Ronald Reagan had nominated our hero, a reporter for the New York Times called me, to describe the massive campaign of anti-Bork activism he saw emerging. I parried the questions as best I could.
Finally, I said: “I'll tell you what this is really all about: The first Supreme Court justice with a beard since Charles Evans Hughes. I'm not going to shave until he is confirmed. It's Beards for Bork.”
The reporter, a good sport, wrote a feature about “Beards for Bork” – which then became a national campaign. My wife – now of 40 years, but then only of 11 – was none-too-pleased when (during a vacation to our home state as I continued working in D.C.) she learned of the beard – not from me, but from a Newsweek story.
So, Dan and I were drinking and discussing matters great and small, including the facial hair. Before heading home, we were determined to make a dent in a bottle of Irish Whiskey. After making a credible start on this endeavor, I suggested we call “Himself” – Judge Bork.
In those ancient times, long before possessing a cell or satellite phone (big clumsy things in those days) I called Bork, who had been a friend for six years, from the simple rotary-dial phone at the Society's bar.
After a couple of tries, I got Bork on the phone for a chat. I said, “Counselor, I have a problem I need your advice on.”
“Well, you see, this friend of mine got nominated to the Supreme Court. This damn reporter called me and asked what I was going to do to make sure my friend got confirmed. Like an idiot, I said I was going to grow a beard and not shave until he was confirmed.”
Bork began to laugh.
“My trouble is,” I continued, “my wife hates the beard. She didn't mind me growing it for my friend, but she doesn't want me to keep it. What can I do? I gave my promise?”
Bork replied, “As you might guess, I am aware of your problem. I heard rumors that the principal involved here might, himself, be contemplating at least a down-sizing of the beard. And, no one would expect you to retain your beard in those circumstances. So I think people will understand. I will.”
After a brief exchange over a Senator who had turned on him, I said, “Bob, why don't you come have a drink with me and Dan? We've still got a ways to go on this bottle of Irish Whiskey.” It was not the first time I'd even called him Bob, but it felt a little easier than in the past.
He replied, “Hmmm. Your offer is of some interest to me. What are you drinking – Bushmill or Jameson?”
Not yet expert on such matters, I didn't know what variety was were imbibing. I asked Casey, who said, “Jameson, of course!”
Although he'd said it loud enough to be heard, I continued, “Dan says we're drinking Jameson, that's what we've got.”
“No, if it was Bushmill I'd come, but I just sat down with a good detective novel and I'm not going to get dressed and go back out just for Jameson.”
I conveyed this to Casey, and my fellow Irish Catholic declared loudly, “What's a good man like [Bob Bork] doing drinking that Prod whiskey?”
Later I bought a bottle of Bushmill and placed it behind of the bar at the Joseph Story Society. I was confident it would leaven future discussions.
In the months that followed publication of my memoir of the Bork fight, I heard from a steady stream of Americans of good will. Those who took time to make contact included members of both parties, people who had divided over the question of confirmation. They called or wrote to say take one side or another (Bork vs. McGuigan/Casey) concerning Bushmill and Jameson. These were pleasant exchanges, yet in them I discerned anew that differences, even in matters of the great significance, do not have to divide us permanently.
Bork, Scalia, Rehnquist and Brennan have all gone before. I remember each of them fondly. In dreams and aspirations, influenced by the structure of my belief system, I foresee opportunities to imbibe, one day and more, Heavenly libations.
Until then, in the here and now, I seek to understand and to defend the legitimate role of an independent judiciary in a democratic Republic. That is a job for sober people. But, sometimes, of an evening, a little whiskey can help.
Selected Bibliography, in addition to links provided above
Collin Levy, “How Joe Biden wrecked the Judicial Confirmation Process,” The Wall Street Journal, May 22, 2009.
Jordan Fabian, “White House: Obama regrets his filibuster of Supreme Court nominee,” The Hill, February 17, 2016.
Julie Knutson, “Commentary: Judicial Reform? Keep selection over election,” The City Sentinel, March 2016.
Patrick B. McGuigan and Dawn M. Weyrich, Ninth Justice: the Fight for Bork (Free Congress Foundation/University Press of America, 1990).
Patrick B. McGuigan and Jeffrey P. O'Connel, eds., The Judges War: The Senate, Legal Culture, Political Ideology and Judicial Confirmation, (Free Congress Foundation, 1987).
Andrew C. Spiropoulos, “Reforming Oklahoma’s Constitution,” OCPAThink.org, October 1, 2008.
Andrew C. Spiropoulos, “Pitching a system without self-interest,” The Journal Record, August 19, 2015.