The Melody Townsel Gambit and the SCOTUS Nominee
Hugh Hewitt
Remember Melody Townsel? She made a charge against John Bolton which was disseminated via Kos to the blogs of the left and then into MSM. Townsel was discredited, but she bled Bolton a bit.
As I discussed in the post below, the left will use the "return of Lochner" rhetoric as a smokescreen for its real strategy for defeating a nominee, which is the Townsel Gambit times a hundred. The nominee can expect the left, harnassing the energy and fanaticism of MoveOn.org etc and using the technology of the web, to identify, canvass and interview every member of the nominee's high school, college and law school classes, plus associates at law firms and past clients as well as lawyers who have appeared before the nominee's court. The close family and extended family of the nominee and spouse will get the same going-over. I wouldn't be surprised if we hear from "friends" of the nominee's younger sibling, or a first year associate or summer clerk in the nominee's former law firm the year the nominee left for the bench. Of course every former government associate will also be a potential mark. And every conference the nominee attended will be analyzed for potential witnesses who will place the nominee in a bar with a stranger.
In short, this is going to be very ugly because the left will commit itself to winning at any cost, and if it takes a dozen Melody Townsels peddling two dozen slanders each, then that is what they will try.
Expect as well the demand for documents that cannot be produced or will not be produced under long standing precedents. That will not succeed in and of itself, but again delay will be the objective until the willing witnesses are found and coached. Like Bush's DUI in the 2000 campaign, the biggest charge of all will drop just as the hearings come to a close, with the left hoping to force another round of hearings as happened with Justice Thomas.
The best defense here starts with the combination of a thoroughly scrubbed nominee and vigilance of new media on the center right and perhaps even skepticism of legacy media of sensational charges (unlikely). The key, though, will be speed. Senators Frist and Specter need to establish a schedule, stick to it, and alert the public from day one that a filibuster will be met with the constitutional option after 100 hours of debate following the conclusion of the hearings. The longer the process drags on, the greater the chance to invent and deploy Townsels. The more specific the schedule and the notice on the constitutional option, the greater the attention of the public and the scrutiny of would-be Anita Hills.
It would also be useful to start reminding people that there have been more than 300 recess appointments of judges in the country's history, beginning with George Washington, and including appointments to the Supreme Court. Eisenhower used recess appointments to put Chief Justice Warren, and Justices Brennan and Stewart on the bench. If the Senate gets roiled by procedural obstructionism, President Bush should be prepared to place his nominee on the court and allow the process to catch up with the new Justice sometime before the end of 2006.
No news on the rescue mission in Afghanistan, except that it continues.
The fundamental dishonesty of the coming campaign from the left over the new nominee to the Supreme Court is demonstrated in E.J. Dionne's column in this morning's Washington Post. Specifically, he writes:
"The real battle is over whether new conservative judges will roll back the ability of elected officials to legislate in areas such as affirmative action, environmental regulation, campaign finance, and disability and labor rights."
The fact is the left likes some legislation and hates other legislation, and wants the former o0verturned by the Court and the latter left alone. Thus did the left praise the Massachusetts Supreme Court demolition of that state's regime of laws governing marriage and cheer for the federal courts' refusal to apply the law addressed specifically to the Schiavo case --a disability rights statute if there ever was one, and recognized as such by all the major disability organization.
The left wants a justice who will implement its vision whether that means upholding laws they like or striking down those they don't They cannot honestly express themselves on this point because to do so is to admit that they want judicial rule because they cannot seem to elect majorities committed to their agenda.
Dionne got the memo from Ralph Neas though. Here's Neas quoted in a column from The Nation's Jon Nichols:
"People for the American Way President Ralph Neas put it best when he said Friday, 'A Scalia-Thomas majority would not only reverse more than seven decades of Supreme Court legal precedents, but could also return us to a situation America faced in the first third of the 20th Century, when progressive legislation, like child labor laws, was adopted by Congress and signed by the President, but repeatedly rejected on constitutional grounds by the Supreme Court.'"
I knew that the "Constitution-in-exile" talking point was going to on the lips of the left, but the repeal of child labor laws seems to have moved to the top of the talking points as well. What is interesting is that the left seems to know that they cannot argue "Roe is falling" effectively because of the post-O'Connor majority still committed to Roe, and also because of the increasing sophistication of the public that looks at places like California and understands that states have legislated extensively on reproductive rights. So much of the noise is going to be absurd claims that the return of the pre-New Deal jurisprudence is upon us. The ideology that cannot deal with the real threat --Nancy Pelosi's "The war in Afghanistan is over"-- is committed to inventing one for the purpose of ginning up its troops and filling up its coffers.
Bottom line: Absent a character flaw, the president's nominee will be confirmed. Daly Thoughts explains why at length, but the short answer is that the GOP has at least 51 solid votes no matter who the nominee is, and the same majority will break a filibuster.
The president can have whichever nominee he wants. Period. The noise levels on the left are just a smokescreen for the search-and-destroy operation the left will run on any nominee's background, and the new media's role will be extraordinarily central, in both bad ways --the floating of rumor-- and good --the destruction of false charges.
I expect the nomination announcement early on Monday, July 11, 2005 so that the weekend dominated by legacy media and liberal law professors don't get to define the nominee for 48 hours before the new media, led by talk radio, gets to set the table.
The key question for any nominee is the one that was last on the counsel's office questionnaire when I was in that office: "Is there anything else in your background that, if made public, would embarrass the President?" All potential nominees have to understand that there is no statute of limitations restraining the left, and passage through confirmation to a lower court is not even remotely like the gauntlet ahead. If there is a problem, disclose it or take yourself out of the hunt. "
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