Lake Was Shot With Bork Bullets

Anthony Lake’s abrupt withdrawal from consideration for the top CIA job can be seen as a case of senator-assisted suicide.

In light of his slapdash management practices and his inexplicable decision not to divest himself of some stocks, Lake probably should not have been approved if it had come to a vote. But his decision to fall on his sword rather than face continued browbeating at the hands of the Senate Intelligence Committee does not excuse a confirmation process that more nearly resembles a savage auto-da-fe of the Spanish Inquisition than it does a reasoned effort at fact-finding by the legislature of a civilized modern state.

Calling the process a “game of political football in which the goal posts are constantly being moved,” as Lake did in his letter asking the president to withdraw his nomination, dignifies a procedure that is more gladiatorial than athletic. For one thing, it is highly capricious. Few potential nominees come to public attention with resumes that indicate certain confirmation or likely casualty. By almost any measure of jurisprudential experience, Robert Bork, who failed miserably in his effort to gain a place on the Supreme Court in 1987, was superior to David Souter, who won easy confirmation in 1990. Bork, like Lani Guinier, who was forced to withdraw her name as nominee to be deputy attorney general in 1993, had the bad luck to have a well-marked paper trail. Both nominees, from opposite ends of the political spectrum, had been law professors who, by the nature of their calling, expose their often unconventional thoughts in law review articles. Accordingly, there was much for the Senate inquisitors to chew over.

There might be a temptation to conclude that a nominee with no ideological signature at all--a kind of philosophical Sasquatch--would be a shoo-in, but that theory doesn’t hold up very well against the experience of Justice Antonin Scalia. The effortless confirmation of the pugnacious conservative suggests that sequence and timing, as opposed to ideological neutrality or qualifications, might hold the keys to success before the Senate.

William Rehnquist, a jurist of somewhat more moderate views than Scalia, suffered the rack and thumbscrew at the hands of the Judiciary Committee when President Reagan nominated him as chief justice in 1986. The White House, reasoning that the committee’s blood-lust had been sated, dropped in Scalia’s name to fill the vacancy caused when Rehnquist moved up, and its decision turned out to be a winner. But when Bork, a man whose views were akin to Scalia’s, came up a year later, control of the Senate had passed to the Democrats, and Ted Kennedy, second-ranking majority member of the Judiciary Committee, went after Bork’s scalp and nailed it to the door frame.

Three years later, when President Bush nominated Clarence Thomas, a jurist whose sketchy credentials could not be disguised even by Bush’s assertion that he was the best qualified person for the job, Kennedy rested on his oars. Grilling the nominee on allegations of loutish behavior would invite charges of hypocrisy in light of Kennedy’s own checkered past. That the Judiciary Committee chairmanship was still held by a Democrat mattered little in the outcome for Justice Thomas.

So if qualifications, a bold ideological signature and which party has the Senate majority are unreliable predictors for how a nominee will fare, what, other than the dumb luck of timing, does give us a hint as to who will succeed and who will fail in this whimsical process?

One thing is certain: A nominee cannot have any enemies in the Senate. Specifically, a nominee must not have incurred the wrath of the chairman of the committee that holds the confirmation hearings. Richard Shelby, chairman of the Intelligence Committee, was gunning for Lake from the start, and his postponements of the hearings were designed to torment Lake with the prospect of the death of a thousand cuts.

Shelby’s antagonism toward Lake was reminiscent of the blackball cast by Sen. Sam Nunn against the nomination of his ex-colleague John Tower in 1989, when Bush tapped the former GOP senator from Texas to head the Pentagon. Before the defeat of Tower’s nomination, it had been an axiom that senators did not feast on the flesh of their own.

The oddest comment floating around Washington in the aftermath of Lake’s outburst against the captiousness of the confirmation process is that it proved that he lacked the toughness to do the job. This is like saying that a patient’s death on an operating table as the result of a botched surgery demonstrated that he had lost the will to live.