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Citizens and senatorial advice and consent - some pragmatic steps

By Marion Edwyn Harrison
web posted August 1, 2005

Amendment II to the Constitution, the second of the Bill of Rights series, pertinently forbids Congress from enacting legislation (" . . . shall make no law . . .") which would abridge "the right of the people . . .to petition the government for a redress of grievances." Over two-plus centuries the courts broadly have interpreted the application of that right.

So a citizen can communicate with his two Senators about a judicial nomination. The pragmatic question is: How? If one wants to endorse the Supreme Court nomination of Federal Circuit Judge John G. Roberts, Jr. for the Supreme Court - or, for that matter, perish the thought, oppose the nomination - how individually does one do so? In this age of mass and instant communication it ain't easy. So much for the advantages of technology.

The most efficacious route obviously is for the citizen who personally knows his two Senators, or knows one of them, to contact the Senator personally. Forget individual e-mail - Senators received more than 83 million last year! A Senatorial office is inundated with e-mail; staffers sort it; replies, if any, are routine, stereotyped, impersonal or phony personal. Let the groups organized to lobby in support of a nomination disseminate the e-mails. If you know the Senator sufficiently well, telephone him or her or drop by the homestate or Washington office. Failing that, write him a letter, but address it to one of his homestate offices or his home, not to his Washington office (where mail can be delayed up to several weeks for [ineptly administered] security reasons and often is "answered" by the same rote staffers who treat e-mail). If you know a key staffer - beyond a clerk or glorified clerk, as many are - contact that person.

Your message would prove most efficacious if it had something to say beyond the massive information and misinformation in the print, radio and TV media and on the Internet. Why do the Senator's responsible constituents support - or oppose - the nomination? The adjective "responsible" in this context means influential constituents, affluent constituents, swing-voter constituents or some combination of the foregoing. It follows inevitably that mere repetition of that which the Senator already knows conveys a lesser impact. Senators by definition are successful politicians. Hence, the voter who would influence a Senator needs to bear in mind, among other things, the base, if any (and usually there are several, of varying size) to which the Senator plays. Massive organized campaigns sometimes can be efficacious but for a Supreme Court nomination in the Year 2005 those forces already are in motion; assist them or contribute to them, as appropriate, but it is well to invoke a personal appeal when possible.

Not much, except maybe slipping some homestate pork into an appropriations bill, moves very fast or very quietly in the Senate. Since the Potter Stewart retirement and Sandra Day O'Connor nomination in 1981, the time from Presidential nomination to Senate confirmation of a Supreme Court nominee has run in calendar days from 50 (Ruth Bader Ginsburg, 1993) to 92 (the elevation to Chief Justice of William H. Rehnquist and the Antonin Scalia nomination, both 1986). President George W. Bush's goal is the confirmation of Judge Roberts by the first Monday in October, when the October 2005 Term of the Court convenes - October 3, 2005. That's only 68 calendar days hence as I pen this column.

Senate Judiciary Chairman Arlen Specter tentatively plans to commence hearings on the Roberts nomination on Monday, August 29 (during the Congressional recess) or Tuesday, September 6 (immediately following the recess) and is thinking of four-to-five hearing days, with voting and reporting of the nomination within two weeks thereafter. Those Democrats and leftist organizations stirring up opposition to the nomination, as if the Ginsburg 50-day precedent did not exist, not unexpectedly are bewailing the supposed rush and clamoring for protracted delay. Senator Specter, himself an experienced hands-on litigator and the former District Attorney of the City of Philadelphia, although scarcely tested as Judiciary Chairman, has a hard-knuckles get-down-to-business reputation and can be any Senator's match in a debate. (Remember how he blew Professor Anita F. Hill out of the water after her lurid and irresponsible testimony before Senate Judiciary on the Clarence Thomas nomination.) Senator Specter is in less than perfect health but he still is vigorous. Unlike his predecessor, Utah's Orrin G. Hatch, Arlen Specter is results-oriented, disinterested in currying popularity with his colleagues - and, indeed, is feared by many Senators.

Of course, the militant Senatorial Left - the Durbin/Kennedy/Leahy/Schumer et al crowd - may launch what the NARALs and others of the Left already have begun: Any kind of character assassination or other attack, any basis for delay (nominee too scholarly, too lawyerlike, too secretive, won't violate or help violate the inviolate attorney-client privilege, has a wife who has been a somewhat active Roman Catholic, himself attends Mass - so on, whatever, however slanderous and/or irrelevant, might find favor with the Leftwing Base). It remains to be seen how far this crowd will smash decency, integrity, objectivity and professionalism - and whether for real or merely to buy time.

In any event, a Senator supporting a nominee always welcomes constituent encouragement; a Senator testing the winds always considers constituent expression of views; a Senator opposing a nominee always requires strong constituent pleading if there is the slightest chance he might change his mind. Therefore, it is the most likely productive first to evaluate the Senator's stand or inclination, then to act accordingly. Constituent input about a judicial nomination isn't much different than input about legislation, with the tragic exception that some liberal Democratic Senators have become character assassins as to nominations.

Marion Edwyn Harrison is President of, and Counsel to, the Free Congress Foundation.

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