STANDING IN THE MIDDLE of Room 226 in the Dirksen Senate Office Building on February 26, 2002, waiting for Wisconsin senator Russell Feingold to convene a Senate Judiciary Committee hearing on the nomination of a federal circuit court judge, I’m told how the choreography will work. Nan, it is explained to me by someone who has just spoken to her (this would be Nan Aron, the head of the left-leaning interest group that amusingly styles itself the Alliance for Justice), will walk into the hearing room and stay in the back for a bit as Feingold “chairs” the hearing. She might walk around. She will be noticed. Then she will leave–her movements and time in the room signaling the degree of interest she has in defeating the nominee. The people who will note this will be at the front of the room–Democratic senators and their Judiciary Committee staff. Along with People for the American Way’s Ralph Neas (whose website boasts of him as “the 101st Senator”) and the Community Rights Counsel’s Douglas Kendall, Aron is a leader of a battery of liberal groups committed to exerting iron-fisted control over the Senate Judiciary Committee’s confirmation process for federal judges. Their target this particular day is my college friend, David Brookman Smith. At 50, Brooks is now the sitting chief judge of the U.S. District Court for Western Pennsylvania. He is here this morning for his confirmation hearing as President Bush’s nominee for the Third U.S. Circuit Court of Appeals. So too are a number of other people. Suffice it to say we are not the usual crowd. A mix of Reagan, Bush, Clinton, and Gore supporters, Pennsylvanians all, the majority are lawyers. I am not a lawyer; I am present this morning simply because of my friendship with Brooks Smith. But I know what lies ahead for my friend. This fair-minded, mainstream jurist (promoted by the late John Heinz and Arlen Specter, moderate Republican senators both), with 14 years of impeccable service as a Reagan-appointed federal district judge (“sterling” in the words of a Clinton U.S. attorney), is about to be relentlessly attacked on all fronts. The assault will be coordinated by a powerful Washington clique whose political identity has slowly evolved from liberal idealist to thuggish practitioner of character assassination, distortion, demagoguery, intimidation, and outright lies insistently repeated in prosecutorial fashion. When a sufficiently damning all-purpose smear sticks, it will be deployed by dutiful senators, Senate staff, and media alike. Worse, precisely because Brooks is a judge, he will not be allowed to respond. Weeks before his hearing, concerned that the White House seemed politically absent from the fight for its judicial nominees even as the telltale signs of a smear campaign are appearing on the Web, I call Brooks. In a conversation only old friends can have, I tell him that while he may have to sit on the sidelines in his own confirmation fight, I do not. I am a private citizen–and I want the phone numbers of any two of his lawyer friends in Pittsburgh. By Saturday afternoon, February 9–the same day the budding assault on Brooks moves from the Web to the news pages of the Pittsburgh Post-Gazette–the Brooks Smith war room is being hot-wired into existence. As I begin spending countless hours on the phone with Pittsburgh attorneys, one eagerly sending me on to another, Republican fury at the treatment of Robert Bork, Clarence Thomas, and Bush I nominees is more than matched by Democratic bitterness over Clinton nominees denied hearings or votes. There are a lot of angry Pennsylvania lawyers out there, liberals and conservatives alike. They are indignant about the treatment of their peers, the lack of good faith in the process–and in their view it is starting to happen yet again. This time to Brooks Smith, someone they all admire and respect. To a person, they want to do something for Brooks and begin reforming the judicial confirmation process. The outlines of a most unusual coalition become apparent. Eventually, it encompasses conservatives and trial lawyers, Reaganites and Clintonites, Bush and Gore supporters, women, law professors, liberals, bar associations, Republican and Democratic activists. Western Pennsylvania media join in, with the liberal Pittsburgh Post-Gazette endorsing Brooks three times, finally labeling his pursuers a “liberal lynch mob.” Disillusioned members of Nan Aron’s own Alliance for Justice, the National Organization for Women (NOW), and other liberal groups volunteer to help. Intelligence from inside Neas’s People for the American Way is quietly offered. Offended Clinton-appointed federal judges in different states speak up voluntarily–directly to Democratic senators. And much more. What most have in common is the obvious–they are lawyers. Universally, they think highly of Brooks Smith. They know the vote of any one Judiciary Committee Democrat added to those of nine Republicans will bring victory. Neither dumb nor shy, our impromptu “alliance for justice” (or is it people for the American way?) goes to work. A prominent trial lawyer approaches Senator Joseph Biden–at his own Pittsburgh fund-raiser. The Pennsylvania trial lawyers’ network focuses on Senator John Edwards. Endorsements flow from the Women’s Bar Association and countless prominent female attorneys individually. The Republican lieutenant governor works the phones. A Clinton U.S. attorney and a Democratic law professor/biographer of liberal icon Archibald Cox write the first prominent op-ed. Confidential documents from the Alliance for Justice are leaked by their recipients. A NOW member forwards a desperate e-mail from that group’s leadership pleading for “women lawyers . . . who would speak up about this guy.” Not a single one steps forward, but another NOW member drives hundreds of miles from Pennsylvania to a Washington press conference and denounces NOW’s attacks on Brooks–while NOW’s national president looks on grimly from the audience. At the same press conference, a Democratic law partner of one of the failed Clinton nominees, John Bingler, denounces the process that resulted in Bingler’s defeat. When the Community Rights Counsel’s Kendall surreptitiously calls lawyers who have lost cases before Brooks, urging them to portray Brooks as unethical, his calls are angrily reported to the Allegheny County Bar Association–and also to Arlen Specter and the press. Impressed by the outpouring of Smith support from his female and lawyer constituents, Specter, Brooks’s patron, pours himself into the fight. So does his Pennsylvania colleague, Senator Rick Santorum, as this blossoms into a full-time campaign. IT WOULD HAVE TO BE FULL-TIME, because fear of the Neas-Aron-Kendall axis is pervasive. A liberal African-American former federal judge is warned by a Senate Democratic aide not to help Brooks because “they will hurt you if they can” (the judge nonetheless writes a pro-Brooks op-ed for the Wall Street Journal). Anonymous phone calls with female voices begin arriving on the answering machine of a Gore fund-raiser after she publicly takes on NOW on Brooks’s behalf in the Pittsburgh Post-Gazette. The calls are blocked so they cannot be traced with caller ID. The intimidation campaign extends even into the Senate itself. The day of Brooks’s hearing, as a dozen Pennsylvania lawyers appear in the hearing room, I am prohibited by Chairman Patrick Leahy’s staff from handing out a press package or even speaking to the press–while Alliance for Justice press releases are freely distributed right in front of me and reporters are chatted up. “They’re a non-profit,” I am icily instructed as I am physically relieved of our press releases. The day the final committee vote is taken, a reporter accepting a pro-Smith press statement from a conservative group has her arm literally twisted behind her back by a male Leahy aide who snarls “you can’t have that.” Press coverage tends to follow the Neas-Aron-Kendall line. On cue, just as Brooks gets a hearing date, the Washington Post runs a story based on a Kenda
ll-crafted memorandum that grossly misrepresents Brooks’s conduct in a bank fraud case. No one associated with the case questioned Brooks’s ethics, but the Post refuses to run a detailed rebuttal to Kendall from no less than ex-U.S. Attorney General Dick Thornburgh, the trustee in the fraud matter. When the Bush Justice Department says it will publicize the refusal, the Post grudgingly runs an edited version as a Saturday letter to the editor. The New York Times barely mentions Brooks until the day before the committee vote. Suddenly, an intellectually lazy lead editorial of hand-fed talking points (comically similar to editorials appearing on schedule the next day in the Post and Los Angeles Times) blares: REJECT JUDGE BROOKS SMITH. The ABC News online daily The Note wryly observes: “It’s nice to see Nan Aron get to ghostwrite a New York Times editorial . . .” Even the committee’s written questions to Brooks illustrate the extent to which senators have abdicated the confirmation procees to outside groups. Aggressively misstating Brooks’s record, prosecutorial in tone, most of the Democrats’ questions have a curiously familiar ring. They should, since most come straight from a secret Alliance for Justice memo that we’ve had in our hands for months. One coordinated ruse stands out laughably. Although possessed of a reputation for integrity, Russ Feingold obediently uses Kendall-supplied documents, posing them as his own questions to the judge. In one instance, a “Feingold” question is nothing but unattributed text directly from a Kendall document: word for word, right down to three ellipses. On another front, senators Schumer and Leahy spotlight Clinton’s unconfirmed western Pennsylvania nominees–all of whom support Brooks. Dubbed by Schumer the Clinton “ghost nominees,” Leahy heralds one, Lynette Norton–who had died tragically weeks earlier. One of the last acts of Norton’s life was to write a letter to Leahy requesting he demonstrate “that the constitutional system still works” by supporting Brooks. Leahy chooses not only to be silent about her letter while using the deceased attorney for his own political purposes; he also picks a red-faced argument with a Democratic friend of Norton’s when she personally asks for Leahy’s support. Lynette Norton’s colleagues in the Women’s Bar redouble their efforts to make her point. Meanwhile, the groups weren’t done smearing Brooks. Brooks’s onetime membership in his grandfather’s all-male fishing club is used by NOW to attack him as not only unethical (for not resigning as soon as they feel he should have) but sexist. When a liberal Pennsylvania doctor e-mails NOW to defend Brooks, he mentions his own social visits to the club. NOW turns to Leahy’s staff. Violating committee procedure that requires majority and minority staff to be present when speaking with witnesses, they order the minority staffer from the room, close the door, and call the doctor. Finally emerging from their back room, they slyly relay a version of the conversation designed to damage Brooks. The doctor flatly repudiates the fabrication in a letter to Specter, saying he is “dismayed and disappointed” with the tactics. The issue ensnares club visitors Jimmy Carter and the late John Heinz. Incredibly, NOW attacks Heinz. The day of the committee vote, May 23, arrives. As I sit in the Senate Judiciary Committee hearing room, Ralph Neas struts through the door reserved for senators. He walks to the corner of the room, studying what he apparently fancies as his personal fiefdom, cronies scurrying around him. Arms folded, his face is a mask of stunned disbelief as he watches Democrats Biden, Edwards, and Wisconsin’s Kohl give Brooks a 12-7 win. Our unorthodox, bipartisan coalition led by lawyers and women had gotten their attention. At fund-raisers, in the media, and with quiet personal conversations(Specter and Biden had theirs on the long train rides home), the case for Brooks Smith was made. Three Democratic senators were willing to listen, and 12 more joined them on the Senate floor. Against the odds, on July 31 Brooks Smith is confirmed for the Third Circuit by the full Senate, 64 to 35. Jeffrey Lord served in the Reagan White House Office of Political Affairs, and is now a writer living in Washington and Pennsylvania.
