As President Obama prepares to name his second nominee to the court, perhaps within days, a new documentary takes viewers inside the war rooms for a look at the polarizing confirmation battles waged each time a seat opens. The film, “Advise and Dissent,” which has its premiere in Washington on Wednesday night, underlines the deep divide over the court.
The film follows the maneuvering and skirmishing over a remarkable seven-month period in 2005 and 2006, when President George W. Bush made three choices for the court in quick succession — the successful nominations of John G. Roberts Jr. and Samuel A. Alito Jr. and the failed nomination of Harriet E. Miers. Some of what appears on screen will feel familiar to those who watched Sonia Sotomayor’s confirmation hearings last year and will probably foreshadow this summer’s hearings.
“Anything you seeing the left doing, the right can do,” Senator Lindsey Graham of South Carolina, a Republican member of the Judiciary Committee, is shown saying at one point, effectively linking the Bush-era fights to the future Obama presidency. “And if there’s a Democratic president, anything that you think is out of bounds or makes you feel uncomfortable, we can do the same thing.”
Mr. Graham seemed to mean that remark more as a lament than a threat. Indeed, he is one of the few senators interested in working across the aisle these days, and was the only Republican on the Judiciary Committee to break ranks and support Justice Sotomayor’s confirmation last year.
But as the documentary makes clear, the lines have only hardened since the 1987 battle over Mr. Bork. With abortion, religion, race, terrorism and other divisive issues in play, each court vacancy is treated as make-or-break by both sides. The only thing the combatants seem to agree about is how much is on the line.
“The future of the court’s at stake,” the conservative activist says.
“This is really high-stakes,” the liberal activist says a little later.
The film was directed and produced by David Van Taylor, who is known for political documentaries like “With God on Our Side” and “A Perfect Candidate.” It gives no insights into the White House process that resulted in the Roberts, Miers and Alito nominations: the president and the nominees are just backdrop figures in the real drama, which focuses on two leading activists waging the battles and the top two Judiciary Committee senators caught in the middle.
From the left comes Ralph G. Neas, then president of People for the American Way and a veteran of the Bork fight, who sees a Bush selection for the court as an assault on everything from civil rights to clean water. From the right comes Manuel Miranda, chairman of the Third Branch Conference, who sees traditional values under siege by the courts and vows never to let liberals take down another nominee like Mr. Bork.
Also featured are Senators Arlen Specter of Pennsylvania and Patrick J. Leahy of Vermont, who were at the time the Republican chairman and the ranking Democrat on the committee, sharing mutual respect and a dismay over the process. Both played important roles during the Bork battle as well, particularly Mr. Specter, who crossed party lines to oppose the nomination in a move that helped define his career.
The antagonists gear up for the Roberts nomination with intensity, with Mr. Neas determined to prove that the nominee is a zealot and Mr. Miranda equally resolved to propel him onto the high court. Their stances then change markedly when Mr. Bush nominates Ms. Miers, who is viewed by the right as an unqualified cipher: Mr. Miranda leads a conservative revolt that sinks her nomination while Mr. Neas sits on the sidelines, noting that the more the right fights with itself, “the happier we are.”
But the Alito nomination restores the normal order again, and Mr. Miranda rallies his allies to finally break “the curse of Bork” and win confirmation of a favorite conservative. “Only in America could a guy sitting in his living room put together a conference call and affect the future of the country,” he says afterward.
The film reinforces the ritualistic nature of the process: a president makes his choice, the activists lob bombs, and the nominee ducks all questions of consequence. A series of shots of Chief Justice Roberts declining to discuss various issues during his Senate hearing could just as easily have featured Justice Sotomayor being equally oblique four years later.
The desire to know what a nominee might do on the bench is, of course, nothing new. As Abraham Lincoln once said when making a Supreme Court nomination: “We cannot ask a man what he will do, and if we should, and he should answer us, we should despise him for it. Therefore, we must take a man whose opinions are known.” (In that vein, he installed his own former Treasury secretary as chief justice.)
Mr. Bush chose people whose opinions were more or less known, or at least could be assumed. And along the way were some memorable moments, like Mr. Leahy’s angry talk in the back of a moving car about the Alito nomination, which he would vote against, though he had supported Chief Justice Roberts. “This was just a bridge too far,” Mr. Leahy fumes. Or John Fund, the Wall Street Journal editorial writer (who is not identified on screen), talking exultantly with Mr. Miranda about how Ms. Miers’s withdrawal led to Justice Alito. “We would never have gotten two Catholic white males otherwise,” Mr. Fund says.
Four years have passed since Justice Alito was confirmed. Mr. Leahy is now the Judiciary Committee chairman. Mr. Specter has switched parties to become a Democrat. Mr. Neas has moved on to health care advocacy, but Mr. Miranda remains active in judicial issues. And the fight continues.
After Justice Alito’s confirmation, Mr. Miranda is shown warning his allies on the telephone not to let up. “The day will come soon enough,” he says, “when the first thing you’ll hear me say is, ‘Okay now, let’s turn to the John Paul Stevens seat.’ ”
That day has come.