Special Interests, Party Politics Damage Judicial Confirmations, Say Coats, Crawford

April 7, 2006

Sen. Daniel Coats and George Crawford

Former Sen. Daniel Coats (left) and George Crawford (right)

Special interest groups and the sharp divisions between Republicans and Democrats have detrimentally transformed political processes, including the confirmation of Supreme Court justices, according to George Crawford and former Sen. Daniel Coats, who spoke about the Samuel Alito confirmation and related politics on April 3 at an event sponsored by the Journal of Law & Politics.

Crawford, the former chief of staff to House Minority Leader Nancy Pelosi, began by outlining the historical and institutional background behind recent changes. According to Crawford, when the Democratic Party was in control in the mid 1980s, a small group of Republicans started using the House of Representatives in a new way.

"We saw amendments being offered for the sole purpose of political embarrassment," he said.

Crawford traced the new Republican strategies to developments in the 1970s, including the introductions of videotaping congressional sessions and recording votes. These modifications, according to Crawford, caused the Republican minority to use a new "campaign-style brand of politics." The Democratic Party reacted by trying to minimize Republican opportunities to employ these tactics through limitations on debate time and other measures.

"The result was effectively to eliminate the minority party's opportunity to engage in governing or putting out their viewpoints on major legislation," Crawford said.

Unfortunately, the new set-up did not provide a "safety valve" and instead resulted in the radicalization of members of the opposition and even members of the Democratic Party. This, in Crawford's opinion, paved the way for Newt Gingrich to become the power center of the Republican Party, giving him the moderate Republican votes he needed.

"The same thing has continued under Republican control," Crawford said. "Democratic members that would most likely vote with the Republicans are now some of the most radicalized and alienated members in the House."

Crawford said Republicans have continued and accelerated the trend begun by the Democrats, partially because of payback, but mainly due to a change in the political landscape, which has become exceedingly narrow. He explained that the close margins between both parties have caused Republicans to fixate on getting the 218 votes needed to pass legislation. If Democrats agree with a Republican-endorsed bill, Republicans alter it to lose their approval, he said.

"What they've tried to say is, Democrats in the House are irrelevant, Democrats downtown are irrelevant," Crawford said.

Narrow margins also mean Republicans feel they cannot risk losing the support of their own party members by reaching out to moderate Democrats. While the ideological spectrum of House members could have been represented by a "bell curve" in previous years, it currently is closer to a "bar bell," with many people on each extreme and few in the middle.

Another change has been "the emergence of the permanent campaign." Although campaigning early used to be a sign of weakness, "nowadays you never close down your campaign." Campaign costs have increased dramatically, so fundraising has gained importance, and special interest groups' participation has become increasingly "vigorous" within the electoral, legislative, and political processes. And, as one example of this trend, judicial nominations have become a particularly rigorous forum of political combat in the Senate.

Coats, who was asked by President George W. Bush to assist in the Alito confirmation process, agreed with many of Crawford's observations while offering an insider view. A Republican from Indiana, Coats has served in both the House and the Senate, in addition to serving as an ambassador to Germany. He now works in the private sector.

Coats's involvement with the Supreme Court confirmation process began when Karl Rove asked for his assistance in the Harriet Miers nomination. What Coats found especially interesting about the Miers process was that the president's own interest groups were among those that turned against the nominee. Coats said the involvement of interest groups in grassroots and financial support of politicians is one of the most troubling aspects of public life in Washington, D.C., today.

"Candidates have become quite dependent, trapped, I'm not quite sure what the right word is, on those groups," he said.

After Miers's withdrawal, Coats was asked to assist in preparing Samuel Alito for the confirmation process. Coats described Alito as smart, humble, introspected, reserved, and brilliant.

"When he made his debut in Washington, it was like taking somebody off the farm and showing him the big city for the first time," Coats said. "He was just kind of overwhelmed and overawed by the whole thing."

Alito's first task was to call as many senators as possible, and he spoke with almost 85 for an hour or more. Next, Coats and others had to prepare Alito for the "onslaught of war" expected between groups on both sides of the political spectrum. The nominee was warned to expect intense scrutiny. Coats told him, "Nothing personal, but they're going to rip you apart." Alito exchanged his relative anonymity as a New Jersey judge for constant media coverage, and Coats said "the first 72 hours he was literally in shock."

The first day of the hearings began with the senators making opening statements of about 10 minutes each.

"What's very amazing is that every issue that a particular senator has in mind in terms of how they're going to vote or how they're going to evaluate this judge has been discussed in the private consultation, but now all of a sudden the camera's on and those private conversations and consultations really are set aside because now they're not speaking to the judge, they're speaking to the camera and the reporters, which speaks to their base, their constituency, their public," Coats said. "And so what you think was addressed satisfactorily in a meeting with the judge in the privacy of a senator's office, it's as if that had never taken place."

This behavior gave Coats new insight into his former position.

"I got reacquainted with a lot of my fellow senators, and I'm not coming at this from a self-righteous standpoint either," he said. "I was thinking, 'Was this what I was like?' And it probably was."

The first day concluded with Alito's opening statement, which Coats considered a brilliant start to the hearings. The second day was when "the grilling" started and focused almost exclusively on cases. Coats said Alito's temperament, judicial philosophy, and sense of reasoning "knocked them dead." Still, opposition interest groups "hammered members" of the Senate on Tuesday night for being "too soft" on the judge, so a rough Wednesday was expected.

"Obviously the conclusion was, we're not going to get this guy on his reasoning, on his cases and so forth, and that's when it got ugly and they were going after his associations," Coats said, specifically addressing Alito's controversial membership in the Concerned Alumni of Princeton, a group that reportedly opposed co-education at the university. "The accusations became flowing on Wednesday to the point where it got really, really rough."

When Democratic Sen. Edward Kennedy insisted upon a subpoena of the Concerned Alumni's records, which have been in the Library of Congress for about 20 years, Republican Sen. Arlen Specter "called his bluff" by promising the staff would check every piece of paper.

"It's a bit of a risk," Coats said. "It's like being in a courtroom and during cross asking a question that you don't know the answer to."

Another dramatic event of the third day occurred when Martha Alito, the nominee's wife, left the room in tears.

"It was a defining moment with the general public because they in effect said, 'They've gone too far, they've beaten up on him too much,'" Coats said.

Coats found his participation in the process rewarding and educational.

"I felt like I was in a postgraduate course on constitutional law," he said. "I learned more just sitting through all his discussions about cases then I began to learn in law school."

From these lessons he concluded that elections matter and interest groups have profoundly impacted politics. Pointing to the less-contested confirmations of Supreme Court Justices Ruth Bader Ginsburg and Stephen Breyer in earlier years, Coats noted a definite change.

"The standard there was were they qualified, were they experienced, did they have the right temperament-essentially the kinds of things you would want out of a Supreme Court justice, not what is their ideology or what are their politics," he said.

While the influence of interest groups is natural and expected during elections, Coats said "the standard ought to be different" for the nomination and confirmation of individuals to the highest court of the land and "shouldn't be so politicized." Instead, senators should rely on the judgment of experts, including former clerks and current judges.

"The Washington culture has changed pretty dramatically over the years, and I don't think it's changing in the right direction," Coats concluded.

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