I know I’m probably going to get a lot of nasty e-mails for saying this, but damn it, I’m sick and tired of Republicans trying to get something for nothing – at least when it comes to my consultation services. I readily concede that Democrats will occasionally button-hole me at a social function and try to obtain my admittedly expensive analysis and advice for free, but Republicans are doing it with such regularity lately that I’ve taken to walking off in the opposite direction when I see one coming. Sure, they don’t have the money to throw around now that they did when Dubya was running the show. But I did business during the entire Bush 43 administration, and can readily attest that having a member of the other party in the White House did nothing, generally speaking, to prevent the Democrats from making proper appointments with me, nor to keep them from paying their bills afterward.
Be that as it may, I simply didn’t see Waggoner coming; the wily son of a gun sneaked up behind me while I enjoyed a Knob Creek Manhattan and the company of a lovely young lady drinking what appeared to be a Cosmopolitan. We were standing next to a backyard pool in Foxhall; I was facing out over the water. My interlocutor could not, of course, be expected to recognize a notorious conservative Senate staffer on sight, although I do recall that an extremely puzzled expression flashed across her face for an instant as she peered at something over my left shoulder. That was the tell, as the carnies and police detectives say, and, had we been standing in the middle of the lawn, it would have been easy to pretend to recognize someone behind her, quickly excuse myself and make off, leaving whoever was shadowing me to confront a lovely young lady with a cocktail – someone who, Waggoner knew, would certainly comment to other guests, were he to ignore her and go chasing after me in a transparent attempt to engineer what could later be characterized as a chance encounter.
But alas, there I was, at the edge of the water with no feasible escape route. “Waggoner,” I lied as I turned toward him, “how nice to see you again.”
“Same here,” he replied with gentle slap on my back imbued with an equal amount of insincerity. “How’s business?”
“Better than ever,” I assured him, and, figuring I might as well get it over with so I could go back to partying, cut to the chase. “And how’s your boss doing with the Kagan nomination?”
“I’m surprised you should mention that,” Waggoner continued to prevaricate, and then, obviously switching to the truth, declared, “but I don’t mind telling you, it’s turning out to be a tough nut to crack.”
“What you really mean,” I shot back, “is that after decades of vicious partisan campaigns against various Supreme Court nominees, during which senators from both sides of the aisle pored over every decision, opinion and law journal article the nominees wrote, collecting ammunition to use against them in confirmation hearings that would embarrass the Spanish Inquisition, no president, regardless of party, is going to take the chance of nominating anyone with a significant record as a jurist.”
“Yeah, Tom,” Waggoner sighed, “you hit the nail right on the head, there, you did. Back in the day, we’d have just mountains of stuff we could use against a Supreme Court nominee who we didn’t think would deliver the goods…”
“Right,” I interrupted. “And that’s just it. Instead of conducting hearings to verify the judicial qualifications and intellectual capacities of a Supreme Court nominee, over the last thirty years, the Senate has turned them into ideological examinations. If a jurist’s record or writings indicated they favored a conservative philosophy, then the liberal senators would mount an expedition through everything that person had ever produced which documented their opinions or point of view, compiling huge stacks of evidence to use against them. And whenever the nominee appeared to be a liberal, then the conservatives did the same thing. So what we got were Supreme Court confirmation hearings where the senators asked questions addressing exactly what you just said, Waggoner – whether or not the nominee would ‘deliver the goods’ and vote the way the senator asking the question wants them to vote. But after a while, the White House, regardless of who occupied it, adopted a consistent counter-strategy – they would coach the nominee to say that they can’t answer hypothetical questions about how they would rule. Consequently, at that point, the senators who wanted to pack the Supreme Court with activist judges…”
“Which,” Waggoner interjected, “can only mean the Democrats…”
“No,” I sternly corrected, “nominating conservative activist judges to the Supreme Court has been a Republican tradition since Ronald Reagan.”
“But there’s no such thing,” Waggoner protested, “as a conservative activist judge. It’s a central tenet of conservative philosophy that judges should never, ever, make law; they should only interpret it.”
“That,” I countered, “is like saying pedophile priests and ministers are impossible, because Christian dogma holds that pedophilia is a mortal sin. But the truth is, they’re all over the place, and most of the time, just like conservative activist judges, they’re hiding behind the central tenets of their philosophies, too.”
“Maybe,” Waggoner harrumphed, “but conservative judges stand for law and order; the liberal ones just want to pay illegal aliens to vote, let queers get married, have abortion clinics on every corner, and…”
“Whatever,” I exclaimed with just a hint of impatience. “If John McCain had won in 2008, I’m certain I’d be listening to some Democratic senate staffer reciting a litany of supposed evils about people like you and Sarah Palin.”
“There’s nothing evil,” Waggoner insisted, “about me or Sarah Palin – or any other American conservative!”
“Well, then,” I reasoned, “by the same token, you’d have to agree that there’s nothing evil about any liberal Americans, either.”
“Why, Tom,” Waggoner breathed, feigning his best attitude of righteous disbelief, “I’m shocked. How can you say that teaching secular humanism, evolution and Socialism in public schools isn’t evil? How can you say that repealing the Second Amendment isn’t evil? How can you say that…”
“What I can say,” I pointed out, “is that Homey don’t play Straw Man, okay? He just don’t play that. I suggest you save the mindless rhetoric for the rubes back home in Podunk.”
“Sorry,” Waggoner shrugged. “It’s… well, just a reflex, I guess.”
“A knee-jerk reaction,” I suggested.
“Yeah,” he drawled, taking a deep drink from his gin and tonic, “I suppose so.”
“Therefore, at long last,” I elaborated as I returned from our digressions, “it became totally infeasible to nominate an actual judge. That’s because any real judge nominated to the Supreme Court will inevitably have tried and ruled in thousands cases and written piles of opinions. All of which used to be the kind of experience which senators would look for in a Supreme Court nominee. But today, those things are nothing but albatrosses and mill stones to hang around a nominee’s neck. That’s why you and your boss are stuck with Kagan – because Obama knew that tracking her paper trail would be like trying to follow Hiawatha through the forest primeval. So, let’s look at the facts,” I prompted, being anxious to finish working for nothing, order another cocktail and rejoin the festivities. “What sort of stuff have you conservatives been able to find on Elena Kagan so far?”
“Well, no dirt,” Waggoner ruefully muttered, “that’s for sure.”
“Nothing,” I presumed, “of Clarence Thomas Coca-Cola can caliber? No Robert Bork quality stuff, like that video rental list of his?”
“That Kagan woman,” Waggoner spitefully complained, “makes Mary Poppins look like an unwed crack whore mother of five.”
“So,” I resolutely continued, “what do you have?”
“We’ve been beating the bushes like crazy,” Waggoner moaned. “We turned the National Archives and the Clinton Presidential Library inside out – forty-six thousand, five hundred pages – so far, with another one-hundred thirty thousand or so more to go. But we’re not terribly excited about what we’ve managed to find.”
“Like what, for instance?” I inquired.
“Well,” he groused, “we found an e-mail from 1997 where she says she doesn’t think illegal immigrants should be entitled to prenatal care.”
“Forcing her to explain that on television,” I volunteered, “might result in a lot of conservative voters in your boss’s district calling his office and demanding she be confirmed.”
“Exactly,” he nodded, “and that’s why they’re never going to hear about it. Then, we’ve got her saying catty things about her colleagues. She stated that one of them had come up with some discussion points in a Medicare case that were such hokum, she suggested they ought to be selling the Brooklyn Bridge to random suckers. And it seems she endorsed a DOJ strategy designed to block a Supreme Court ruling what would have repealed affirmative action. That could sell with a lot of conservatives who oppose minorities having all these advantages and stuff these days, but it’s hard to tell exactly what she thinks, though. Mostly, you have to go with what you can conclude from the passages of text she underlined, plus a bunch of marginal notes. And her handwriting is so bad, half the time we can’t tell whether she wants minorities to have an unfair advantage in higher education and employment or not.”
“In that case,” I opined, “maybe she should have been a doctor instead.”
“It would have saved me a boatload of headaches,” he muttered, “that’s for sure. At least some of the stuff we dug up looks promising. We did find out, for instance, that she contributed money to the National Partnership for Women and Families. And one of their board members wrote a letter endorsing her for Solicitor General. It’s a pro-abortion organization, so there’s the tie-in; and of course the NPWF have connections to NARAL and a bunch of other feminist cabals. Plus, we found an article she wrote in the Princeton school newspaper in 1980 where she criticized pro-life politics. She put the phrase ‘innocent life’ in quote marks. I guess we could ask her to explain that. And we’ve found some notes in the margins of several documents which indicate she’s in favor of stem cell research, too.”
“I don’t know,” I said with a skeptical shake of my head, “if all that pro-life song and dance is still fashionable these days. I mean, a significant portion of the electorate who decide how to vote solely on a candidate’s position concerning that single issue has passed away since you Republicans started using it forty years ago. I’d say, you’ve got to stop living in the past.”
“Glorification of the past,” Waggoner proclaimed, waving his drink grandiosely, “is what made the Republican Party what it is today!”
“No arguing with that,” I acknowledged. “What else have you managed to find?”
“Well,” Waggoner mused, “we do have her saying that the ‘don’t ask, don’t tell’ policy is ‘a moral outrage,’ and we’re pretty sure she doesn’t mean she thinks letting gays serve in the military is outrageous. Then, we found this e-mail where somebody says she told them that opposition to repeal of the Brady Gun Law is wrong and the Supreme Court’s decision concerning that law and the Second Amendment is questionable…”
“I am not a lawyer,” I cautioned, “but that sounds an awful lot to me like pure hearsay.”
“Oh, yeah, sure,” he agreed with a confident smirk, “it is. But fortunately, the rules of evidence don’t apply to Congressional testimony. Okay, now, what’s more, she edited a draft of Clinton’s remarks to law enforcement officials concerning the Supreme Court’s decision on the Brady Law. In the sentence ‘Today’s ruling should not mean an end to Brady background checks,’ she crossed out ‘should’ and wrote ‘will’ in there instead. And when a civil servant at the Social Security Administration wrote the Justice Department in 1997 to protest a law that denied benefits to Nazi war criminals, we have impressive evidence she remarked that the letter ‘definitely had a very snotty tone to it.’ Then there’s this note she wrote in the margin of a memorandum about a white teacher who sued for reverse discrimination in a job layoff case. The memo says that DOJ should file a brief on behalf of the white teacher, but make sure that the argument is narrow enough to avoid any racial issues. Kagan said she thought that was exactly the right thing to do.”
“Sounds like perhaps it was,” I observed.
“Maybe,” Waggoner allowed, “but who cares about what’s right? What we need is stuff we can use to defeat her nomination!”
“But why?” I insisted. “Isn’t it just possible she might be very well qualified to serve and prove to be a valuable addition to the Supreme Court?”
Waggoner’s eyebrows shot skyward. “What do you mean, ‘why?’ Because she’s a Democrat, that’s why! Because a Democrat president nominated her! What other reasons do we need?”
“Actually,” I told him, “it seems to me there’s a significant amount of evidence that Kagan might be someone a lot of conservatives would favor. Sure, she’s pro-choice, but, by the same token, I’ve read recently that she opposed a federal ban on assisted suicide. She supported the ban on use of federal funds in needle exchange programs for intravenous drug users. And as we both know, just last year, the Obama administration got Congress to pass a law supporting it. So who knows? Isn’t it at least plausible that maybe a Justice Kagan would vote to overturn that law? She’s apparently against medical marijuana, too. Not to mention that she opposed tougher restrictions to tobacco industry advertising on First Amendment grounds. Then there’s that brief she filed back in 1997 on behalf of the Department of Justice which favored no-knock search warrants.”
“Yeah,” Waggoner grudgingly conceded, “but the warrant was to look for guns.”
“But then she filed an amicus brief with the Supreme Court in favor of no-knock warrants for drug searches, too,” I noted. “It seems to me that when you get down to it, the only thing you have on Kagan is that she’s probably pro-choice. But there’s no way you can block her Supreme Court nomination with just that. Besides, you conservatives already have Roberts, Scalia, Thomas and Alito up there, don’t you? And you know all four of them are going to vote to keep women barefoot, pregnant, underpaid and subservient to men for many decades to come. So why not just let this Kagan thing go and concentrate on rebuilding a Republican political hegemony? After all, if you can manage to do that by 2016, well, hell, Ruth Bader Ginzberg will be eighty-three! Replace her with someone you conservatives like and you can repeal Roe versus Wade, re-interpret the Bill of Rights to allow white power militia members to own full-auto AK-47s, be as mean as you want to illegal aliens, go back to the gold standard, dismantle the Federal Reserve, repeal income taxes, uphold state laws banning the teaching of evolution, and make English the official national language!”
At the very thought, Waggoner broke into a broad, beaming smile. “Gee, Tom – do you really think so? You think we conservative Republicans could really do all that with control of just one more seat on the Supreme Court?”
“Of course you could,” I assured him. “Who’s going to stop you – Sonia Sotomayor and Elena Kagan?”
“Okay,” Waggoner chortled, “that sounds great – rebuild the Republican political hegemony. So, ah, how do we go about doing that?”
“The first step,” I dryly informed him as I broke away and strode for the bar, “is to call my office on Monday morning and make an appointment for a consultation.”
“Oh, yeah, sure…” Waggoner stuttered, calling after me as I left, “Uh… can I do that on credit?”