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Jewish World Review May 21, 2001 / 28 Iyar, 5761

Tony Snow

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Who's in charge? -- THE Tong Wars arrived in Washington when Democrats on the Senate Judiciary Committee tried to scuttle Ted Olson's quest to become the nation's solicitor general. Sen. Patrick Leahy, D-Vt., led the charge, claiming that Olson may have delivered conflicting accounts of his work during the 1990s as counsel for the American Spectator magazine. More precisely, Olson may have fuzzed up his role in "The Arkansas Project," an effort, funded by conservative philanthropist Richard Mellon Scaife, to dig up dirt on Bill Clinton.

As conspiracies go, the Arkansas Project was a dud. It produced a grand total of eight magazine articles, none of particular moment -- because 1) the Clintons had done a pretty effective job of destroying evidence and/or witnesses back in Arkansas, and 2) one didn't have to travel to Little Rock to find incriminating evidence about Bill Clinton. Washington was awash in the stuff.

Furthermore, Democrats knew the charges against Olson were baseless. Investigator Michael Shaheen wrote a 168-page report as part of Kenneth Starr's independent-counsel probe and found nothing. Moreover, Olson himself led a movement within the American Spectator board to shut down the project and prevent any recurrence.

The attack on Olson fell apart for three reasons. First, a number of prominent Democratic attorneys came publicly to his rescue. The cadre included Lawrence Tribe, who opposed Olson in arguments before the United States Supreme Court in the case of Bush vs. Gore; Bob Bennett, who represented President Clinton during the Lewinsky ick; Clinton-administration Solicitor General Walter Dellinger; Clinton White House counsel Beth Nolan; a bevy of distinguished law professors; and the like. Bennett actually placed himself directly in Leahy's sight line during the pivotal hearing on the Olson nomination, as if to say: Dare to look me in the eye.

Second, journalist David Brock and others set up Sen. Leahy by promising to produce a juicy scandal. Instead, Brock delivered a laundry list of his personal grievances. When Republican senators began asking Leahy for specifics about the scandal that wasn't, the poor man sputtered and rifled through his notes. He looked utterly exposed.

Third, even the worst-case scenario was trivial. The most evil construction of the Arkansas Project was that it represented a conspiracy to commit journalism -- something that often went unpracticed in Washington during the Clinton years. Furthermore, Leahy and his staff were doing precisely what they had accused Olson of doing, which was conspiring with journalists (including Brock) to perform a personal hit on a political foe.

Eventually, Olson got through. Although nary a Democrat voted for him, many took pains to praise him as a man of demonstrated probity and competence. This raises the question: If he's such a great guy, and the charges against him were so thin and unsupported, why did the Democrats waste ammunition trying to destroy him?

The answer is: Scent marking. Leahy and his colleagues served notice that they'll turn every confirmation battle into the political equivalent of the Bataan Death March, hoping Team Bush eventually will tire of the hostilities and stop proposing judges who agree with the president. In so doing, Senate Democrats have lifted the veil on the most fascinating political battle of the age. They want to defend the rights of judges to abandon the old-fashioned approach to law -- which is to try to apply general principles to specific cases -- in favor of jurisprudence that lets judges abandon general principles and rely instead on their own personal wiles, wisdom and wit.

This is hardly a new battle. It dates back to biblical times, when Moses chose the "general rule" route, through the Middle Ages, when St. Thomas Aquinas warned against the tyranny of judges who issued decrees based on their personal sentiments rather than on settled legal principles, to the Founding Fathers. Jefferson complained about courts usurping legislators and, as theologian Russell Hittinger has noted, "four of the first eight amendments (to the U.S. Constitution) deal with limits on the federal judiciary."

But leftists have come to view democracy as a slow-moving humbug. They have come to rely on judges to ramrod into existence new ordinances and statutes that the public simply doesn't support. This explains the extraordinary importance to them of Roe vs. Wade, which outlawed public debate and political resolution of the abortion issue -- and thus offered a surefire way to impose "progressive" legislation on a nation not then ready for such law.

George Bush has vowed to pick judges who prefer the old way because he believes such people are more likely to respect individual rights, and to reject temptation to lord over others.

In short, the Olson dust-up served notice that we're all about to witness a protracted fight over the question of who's in charge. Last week, the White House and Senate Republicans gave the answer-for-now: George W. Bush.

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© 2001, Creators Syndicate