As we saw last week, George W. Bush and his strategists drew from the defeat of Robert Bork’s Supreme Court nomination years earlier the general lesson that the White House needed to wage an intensive political campaign in support of its own Supreme Court nominees. I drew a particular additional lesson: the need to refute falsehoods about, and distortions of, a nominee’s record before they gained traction and became much more difficult to counter. And I perceived that the Internet provided a valuable new vehicle that was unavailable to Bork’s defenders.
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I am not going to rehash the false charges that Bork’s opponents bombarded him with in 1987. (The interested reader can consult chapter 16 of Bork’s The Tempting of America.) Bork had a very talented team of Department of Justice lawyers and former law clerks who, in his words, “worked day and night compiling information and responses to accusations made by various senators and liberal activists.” But, as an adage attributed to many famous people puts it, “A lie gets halfway around the world before the truth can get its boots on.” A liberal media hostile to Bork had little interest in recognizing and highlighting his team’s corrections.
By 2005, the mainstream media no longer controlled the gateway to communicating with the public. For better and worse, the explosion of the Internet provided unlimited new opportunities. New online publications flourished.
In April 2005, a year into my new position as head of the Ethics and Public Policy Center, I wrote a couple of articles for National Review Online, one on a New Yorker profile of Justice Antonin Scalia’s jurisprudence (“Supreme Confusion”) and the other on a speech by Justice Ruth Bader Ginsburg defending the Court’s misuse of foreign law (“Alien Justice”). I was a complete newcomer to the world of conservative legal commentary and barely knew anyone at National Review Online, but I saw an important opportunity ahead.
There would likely be a Supreme Court vacancy soon, I told my NRO editor, and it would be valuable to have a dedicated blog, modeled on but separate from NRO’s popular “The Corner,” on which I and other contributors could cover issues related to judicial confirmations and constitutional law. NRO had been contemplating such a blog, she replied encouragingly, and in May 2005 “Bench Memos” was inaugurated.
The timing couldn’t have been better. Bench Memos was up and running, and had already begun developing a good readership, when Justice Sandra Day O’Connor announced her retirement on July 1.
The mission that I assigned myself was to be prepared to immediately knock down ill-founded attacks on whomever Bush ended up nominating. To that end, I spent dozens of hours in the ensuing two weeks reading through binders of opinions written by the leading candidates and anticipating the lines of attack.
The blog format was ideally suited to what I had in mind. Blog posts could be as long or as short as a topic deserves. They could be published as soon as they were written. They could include hyperlinks to cases or other materials (including earlier blog posts) that substantiated their points. And they were permanent and readily discoverable via Google searches.
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The morning after Bush announced his nomination of John Roberts, People for the American Way issued a ten-page “preliminary report” on Roberts’s “disturbing” record. In a series of six succinct posts over the next 30 or so hours, I exposed how feeble and laughable PFAW’s attack was. Who now recalls the great french-fry flapdoodle over a simple ruling that was PFAW’s lead “Individual Rights” case against Roberts, that a Washington Post columnist promptly declared singularly damning, and that Slate’s Dahlia Lithwick (some things never change) eagerly misdepicted? A search of the transcript of Roberts’s confirmation hearing indicates that no senator or other witness tried to invoke the case against him.
I was very pleasantly surprised by the readership that my Bench Memos blogging on the Roberts nomination earned from the outset. From the first week on, reporters were calling me to walk them through cases and to respond to conflicting claims. A Washington Post reporter told me that she and her colleagues were checking Bench Memos several times a day.
The same reporter told me that she and her colleagues even wondered whether I was the White House’s communications vehicle on Roberts. I found that speculation particularly amusing, as I had not any contact with the White House on the Roberts nomination.
What’s more, a major reason that I was blogging was that I feared that the White House communications office, staffed (I assumed) with veterans of election campaigns, would have an instinct to run to the political middle any time a controversy arose, rather than to offer a robust defense of conservative jurisprudential principles. The office also could not be expected to have the expertise to address complicated legal issues, and it would in any event be very wary of speaking out forcefully on matters that Roberts himself could be expected to address at his confirmation hearing.
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On every Supreme Court nomination from John Roberts in 2005 through Ketanji Brown Jackson’s in 2022, I have written extensive commentary on Bench Memos. For all its many faults, the Internet has helped to level the playing field on which Supreme Court nominations are contested.