While there are many fascinating aspects of this confirmation process, 2 jump out at me in particular. The first is the nominee’s insistence today that she had no recollection as to what she did as part of the Bush/Cheney legal team in 2000. That assertion absolutely floored me, as I was on the periphery of that legal abomination, and I will recall every moment of it to my dying day.
Back then, one of my closest friends from UF law school filed a suit in Seminole County, FL (northeast of Orlando) seeking to have absentee ballots invalidated because they were procured in technical violation of state election laws. He shepherded that case through its early stages but eventually handed off the lead role to another attorney (who obtained funding) because my friend serving as lead counsel pro bono was killing his regular practice. We discussed that case by phone every 2-3 days from the time that he filed it until it was dismissed after the B v. G ruling.
That case is best explained in this NYT op-ed from Jed Rubenfeld, a Yale Con Law prof dated 12/9/00—the infamous date upon which 5 justices stayed our statewide recount and John Bolton, holding a copy of the Order, ran into the Tallahassee library and exclaimed:
I'm with the Bush-Cheney team, and I'm here to stop the count."
The details of that case are secondary after 20 years. As Rubenfeld noted (and, as I discussed with my friend 2 days earlier), the argument could have been made that, under the unanimous Bush v. Palm Beach County Canvassing Board decision entered on 12/4/00, the absentee ballots at issue in Seminole County should’ve been thrown out:
This line of reasoning is just what Mr. Bush's lawyers objected to in the Florida Supreme Court decision. That decision extended a statutorily designated seven-day deadline for certifying the results of the Florida counties' presidential votes. In reaching this result, the Florida justices, citing the Boardman case, stated that people's right to vote, guaranteed by the Florida Constitution, superseded mere ''technical'' requirements imposed by the Florida Legislature.
These were precisely the statements that caused the United States Supreme Court to set aside the Florida Supreme Court's decision. ''Adherence to statutory scripture'' is just what the federal justices have apparently demanded.
It appears the circuit judges committed a clear error by following Boardman. When the Florida Legislature expressly changed Florida law in 1998 to say that absentee voters must themselves supply their own registration information, it made its will and its requirements clear. These requirements may seem hyper-technical to an equitable judge. They may seem the sort of thing that should not stand in the way of people's right to vote. But under Monday's United States Supreme Court decision, the Florida courts are bound to apply Florida statutory law regardless of these considerations.
I’ve forgotten how many ballots were involved, but there were more than 537 of them. The argument,unfortunately, was never made in that case, the ballots at issue were all counted, and Bush/Cheney got Florida’s essential 27 EVs.
What I’ve never forgotten is the issues that were being argued, the discussions that my friend and I had, and my deep and profound frustration at the fact that the argument that Rubenfeld advocated (and that I had also advocated) was never made. Barry Richard was successfully able to argue in this case that the strict letter of FL election law shouldn’t apply in this case while he successfully simultaneously argued the diametrically opposite point in B v. G. As a result, we got 8 years of pre-emptive war, torture as a stated policy, and a near crash of the economy.
The relevance of that experience to today’s hearings is that my memories of my legal discussions with a friend involved with that legal miasma are as fresh in my mind now as they were then. That’s why ACB’s claims that she has no memory of her (presumably paying) involvement in what, for her, was a path to career advancement are the least credible aspect of 2 days of appallingly less than credible testimony. I know better from my own personal experience.
I would also like to mention my profound discouragement at the institutional support that my undergraduate alma mater, The University of Notre Dame du Lac, has provided to ACB. I first set foot on the university campus at age 9. At age 10, I watched Neil Armstrong take a giant leap for mankind in a dorm room full of fellow attendees at a summer sports camp there, and my father and I attended over 15 football games there before I was a student.
I occasionally shagged football at practice for future NFL superhero Joe Montana and I routinely passed future NBA arch-villain Bill Laimbeer on the North Quad there. As an intrepid student journalist , I attended pressers with Gerald Ford and Henry Kissinger, and I covered a papal mass in Chicago for the student radio station. My closest group of friends to this day was from there—we have an e-mail circle that still regularly communicates (including today) 40 years after graduation.
Obviously, Notre Dame means many things to many different people. I was reminded of that when controversy erupted over Obama’s commencement speech in 2009. To his credit, university president Fr. John Jenkins stood his ground then. Presumably, everyone here knows why I hold a very different view about how Fr. Jenkins has handled this nomination.
What is most remarkable about the institutional support afforded ACB is that her repeated assertions of ignorance in her testimony don’t exactly reflect well on the university. Anyone with a degree from any college or university of any kind presumably has a clue on climate change. A former tenured prof at a leading law school (whose father was an in-house counsel for Shell) sure as hell should have an idea. Her refusal to explicitly state that a president does NOT have the authority to delay an election (a point that any 1L who passed Con Law should know) was equally embarrassing. This originalist’s pulling a Rick Perry on the 5 freedoms guaranteed by the First Amendment could be attributed to the pressure of a high-stakes hearing, but, in the context of the rest of her testimony, it didn’t reflect well on her.
Thankfully, there are faculty petitions opposing her nomination. That, however, is small comfort when a university that I have so cherished for so long so visibly chose prestige over its stated motto of Vita-Dulcedo-Spes (Life, Sweetness, Hope). Between the nominee’s transparent dishonesty about her work for Bush/Cheney and her diminishment of the reputation of a university that has been such a major part of my life, it has been a rough 2 days.