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Mouths Wide Shut

As a rule, the Senate discussions about nominees that did take place occurred in closed session until 1929, Ritchie says. "Reporters used to find out immediately what went on in the closed sessions." After a while senators realized they couldn't maintain secrecy, he says, and closed sessions became the exception.

What hasn't changed, Ritchie notes, is the fighting over judicial nominees, which dates to George Washington's presidency. Unhappy with a speech John Rutledge had given, the Senate denied him the position of chief justice.

There have been more than 500 Cabinet nominees, and fewer than 5 percent have been rejected, Ritchie says. There have been fewer than 200 Supreme Court nominations, and about 25 percent of those have been withdrawn or rejected.

"The Cabinet is perceived to be the president's creation and he should have his advisers. The Supreme Court is an independent branch and a lifetime appointment. They have always treated them in a different category. The acrimony today has intensified, but it's always been there."

* * *

It's hard to pin down exactly when the modern era of acrimony -- and the subsequent handling of nominees -- began, but conventional wisdom traces it back 18 years, to the experiences of the man now finishing a cracker as he answers the phone in his McLean home.

Robert Bork is straightforward, his deep voice even and measured. He declines an offer to call back. "It doesn't take that long to finish" his wafer, he insists.

This is the man to whom the expression "borked" can be traced. As the definition goes in some circles, it means to be smeared, unfairly attacked. But it would depend on which side of the ideological fence you stand when it comes to using that word.

"If borked means fulfilling your constitutional duty by protecting the rights and freedoms of the American people, then every senator should wear that as a badge of honor," says Stephanie Cutter, an aide to Sen. Edward M. Kennedy (D-Mass.), who fired off a speech on the Senate floor attacking Bork on issues such as abortion and civil rights.

Whatever your position, the strategies for getting a judge confirmed today, Bork and others speculate, is based on a simple formula: Look at Bork's confirmation process and do the opposite.

"Yes, it's true," Bork says. He had always been a conservative and outspoken judge with a long paper trail of controversial writings that could be pored over. It didn't help that at his hearings he came off as arrogant and distant.

John Roberts, though, may be well on his way to being "soutered." Where Bork was outspoken, David H. Souter, elevated to the Supreme Court in 1990, was reserved. So is Roberts. Where Bork left a paper trail, Souter had little to be read. Although Roberts's work as a lawyer in both the Reagan and George H.W. Bush administrations is well documented, he has a short record as a judge. (Citing attorney-client privilege, the White House has refused to release files from Roberts's time as a young attorney in the inspector general's office.)


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