Why the Attacks Must Stop

In an unprecedented move too audacious and shocking ever to be repeated, President Barack Obama has nominated two judges to a single vacancy on the United States Court of Appeals for the 7th Circuit.

The first judge, David Hamilton, is described as a qualified moderate with broad support from across the political spectrum, including the Republican senator from his own home state. The second judge—whose name, bizarrely, is the same—is pegged as a lamb in sheep’s clothing, an “ultra liberal disguised as a moderate.” The choice of the first candidate was not intended to rock the boat. “I regard Judge Hamilton as an excellent jurist [whose]… judicial philosophy is well within the mainstream,” said Geoffrey Slaughter, who, as President of the Indianapolis chapter of the Federalist Society, was not the most likely supporter of an Obama nominee. The choice of the second nominee, by comparison, prompted a fiery March 19 statement by former Attorney General Edwin Meese and Family Research Council’s Tony Perkins. Hamilton, they argued, has an “extreme political agenda,” a “hostility toward the free exercise of religion,” and is a “political activist” with a record of “letting criminals go free.”

The David Hamilton appearing in the mainstream news and the bête noir of the partisan talking points are two different people with very little in common. But the press, whose attention is evidently elsewhere, seems to think that this discrepancy is another inane fact of political life. An argument over his qualifications and jurisprudence is one thing, ad hominem excoriations another entirely. If the two sides cannot agree on who is even being argued over, then there’s no hope at all of a civil back and forth on the judge’s credentials.

The Hamilton nomination is not the only battleground these days; it’s but one front on what has proven to be a multi-front war.

Some groups are taking a page out of the old partisan playbook to smear Obama’s pick for legal adviser to the State Department. The attacks have been so disparate and so varied that you would be forgiven for thinking that Obama has, yet again, managed to do the impossible, nominating two men for a single job. The first nominee, Harold Koh, has worked for the Reagan and Clinton administrations and earned the praise of academics and practitioners alike (such as that of Ted Olson and a group of conservative Yale Law students). As a possible Supreme Court nominee, he has obviously riled up elements of the conservative base, which wasted no time in attacking Koh’s record as a lawyer and scholar. With these attacks, the second Harold Koh was born, sprung (fully formed) straight from the collective head of his attackers. Now, we have two nominations on our hands when we could have had one.

In the meantime, the Senate Republicans’ possible filibuster of hearings on Dawn Johnsen reflects what the NY Times calls “the migration of accusations from political blogs to Senate hearing rooms.” The attack campaigns launched online and among special interest groups affect both how these confirmation hearings are carried out and what the public ultimately learns about a candidate. The political establishment takes its cues from inauspicious places.

No one claims that confirmations shouldn’t be hard earned—only that they shouldn’t have to be so viciously fought. Falsehoods and distortions abound when philosophical differences turn personal—which, in the political arena, they almost always do.

Our courts and legal institutions suffer when politicians, advocates, and pundits thrust judges into the crosshairs of the partisan and the personal. Ugly confirmation hearings are just one national example, but there are others. In 39 states where high court judges are up for partisan or non-partisan election, candidates, special interest groups, and the state political parties do battle—and are out for blood.

Just last April—in the hardest fought state Supreme Court race of the season—lower court judge Mike Gableman attacked incumbent Louis Butler in Wisconsin with ads so vicious that the state’s Judicial Commission had to intervene. The commission denounced the ads and appointed a special panel to recommend possible punishment for Gableman, who won the election and currently sits on the state’s Supreme Court [click here to view ads]. In Mississippi, incumbent Oliver Diaz Jr. lost his bid for re-election after a Virginia-based group called the Law Enforcement Alliance of America trashed his record. And in Michigan the state Democratic Party ran ads against then Chief Justice Cliff Taylor that were at least partly based on unsubstantiated allegations [click here to view ads].

These kinds of attacks, like the ones levied against David Hamilton, are so damaging because their misinformation sticks. As Mark Twain once said, “A lie can get halfway around the world before the truth can get its boots on.” This means that a good candidate—or even a bad one—is left bloodied, either by a tortuous confirmation hearing or an actual election. Truths and lies increasingly rest on the same footing; the internet, for one, is awash in distorted accounts of the credentials and positions of otherwise qualified candidates. And even refuting the most outlandish claims proves difficult when attacks are calculated to bring down a candidate or nominee if not by pointed claims then by general insinuation and negative association.

Even worse, though, is how these political grudge matches sully institutions that are meant to be above the fray. As Dahlia Lithwick pointed out in her recent article for Slate, if we tolerate these smears and attacks and simply accept that this is how things have to be, then we deserve what we have coming. She’s right. What we stand to lose is greater than the sum total of thwarted candidates too bruised to withstand the nastiness of nomination battles and elections. At stake is the sanctity of the very institutions created to guarantee that our democracy is in working order.