Last night I headed across town to NYU Law School for a screening of Advise & Dissent, a new documentary about the Supreme Court confirmation process. Here’s a brief description of the film:
ADVISE & DISSENT is the first documentary to go behind the lines and into the trenches of the judicial confirmation wars. SCOTUSblog has called it “a fascinating, balanced insider look,” and Politico named it “a must see.” Timely and timeless, the film illuminates the collision of politics and justice.
Last night’s showing of the movie was followed by a conversation, featuring the following participants:
- Howard Fineman, chief political correspondent, Newsweek;
- E. Joshua Rosenkranz, partner, Orrick, Herrington & Sutcliffe (which sponsored the screening);
- Jamal Greene, professor, Columbia Law School; and
- David Van Taylor, director of Advise & Dissent.
A report about the movie screening and the panel discussion, after the jump.
After a reception, everyone adjourned to the screening room. There were some introductory remarks about the Brennan Center, a non-partisan public policy and law institute founded by former law clerks to Justice William Brennan, and the Creative Coalition, a non-profit organized by the entertainment community to address issues of public concern.
Representing the Creative Coalition was actress Gloria Reuben, perhaps best known for her role as Jeanie Boulet on “ER.” Reuben — tall, willowy, beautiful — was resplendent in a black cocktail dress featuring sleeves with scalloped edges. She joked that although she’s not a lawyer, she plays one on TV — a reference to her portrayal of a public defender on “Raising the Bar.”
Reuben introduced the director of “Advise & Dissent”:” David Van Taylor, a Harvard grad and former public school teacher who is now a political documentary filmmaker. Van Taylor in turn introduced the film, alluding to the upcoming Supreme Court confirmation hearings for Solicitor General Elena Kagan, which start on Monday. He noted, somewhat ruefully, that the SCOTUS hearings are being overshadowed by other developments: “There are so many terrible things going on in this country right now that people aren’t really paying attention to the Supreme Court confirmation process.” (For more detailed comments by Van Taylor on his movie, check out his interesting interview with Erin Miller, over at SCOTUSblog.)
The screening began. The film tells the story of three Supreme Court nominations, two successful ones and one failure: the nominations of Chief Justice John Roberts, Justice Samuel Alito, and the ill-fated Harriet Miers. If you followed these nominations in real-time, you know what happens in the end (which may be an obstacle that Advise & Dissent has to surmount — it’s hard to generate suspense about events where the outcome is known). For a concise summary of what’s covered in the film, see this article by Peter Baker in the New York Times.
On the whole, I’d recommend Advise & Dissent, especially if you are a legal or political junkie. It’s an interesting, behind-the-scenes look at the political machinations surrounding Supreme Court nominations. The film tells its story through two main characters — the conservative Manuel Miranda, chairman of the Third Branch Conference, and the liberal Ralph Neas, then president of People for the American Way — and it’s commendably balanced (except perhaps at the very beginning, when archival footage is used to celebrate the glory days of the Warren Court, and at the very end, when some heavy-handed epilogues intrude).
The movie’s not long on suspense, since we know how these stories end, and the production values aren’t very high; it doesn’t have that glossy, high Hollywood feel (and arguably would have been poorly served by such slickness). But Advise & Dissent has some nice behind-the-scenes footage that’s worth the price of admission, much of it involving Senators Patrick Leahy or Arlen Specter, the two politicians at the film’s enter, or NPR’s diva-licious Nina Totenberg, who is seen deploying her considerable charm on the politicians she covers. And, at 90 minutes, Advise & Dissent is not overlong (which sadly can’t be said for most movies these days).
The panel discussion that followed the film was exceedingly interesting. Moderator Howard Fineman kicked it off by asking for feedback on the movie from Orrick partner Josh Rosenkranz, a former law clerk to Justice Brennan and to then-Judge Antonin Scalia (back when he was on the D.C. Circuit), and Columbia law professor Jamal Greene, a former law clerk to Justice John Paul Stevens.
Rosenkranz expressed the view that the Supreme Court confirmation process is inherently political (contrary to a line uttered by Senator Specter in the movie). He condemned as “just plain wrong” the position that it’s acceptable to vote against a nominee because of something improper in her personal background but somehow unacceptable to vote against her because you don’t like how she’ll vote in cases.
Greene echoed Rosenkranz’s remarks, stating that he’d like to see more candor in the confirmation process. He added, however, that he doesn’t feel a huge amount of outrage about the current process. In general, according to Greene, the confirmation process works the way it’s supposed to work.
Fineman asked for the panelists’ predictions about the Kagan confirmation hearings. Rosenkranz, who clerked with Lady Kaga on both the D.C. Circuit and the Supreme Court, predicted that she will take a page from the John Roberts playbook, avoid saying anything controversial at her hearings, and win confirmation. Greene joked that Kagan has been “saved by the oil spill — who even knows that the hearings are starting on Monday?”
(We do! Check in to Above the Law on Monday morning for our liveblogging of the Divine Miss K’s showdown with the Senate.)
Greene suggested that the Republicans have decided that they’re willing to fight for the judiciary in a way that the Democrats won’t. This led Fineman to offer some fascinating (if somewhat random and unprovable) speculation: Do the Democrats subconsciously feel guilt over how they killed the Bork nomination, which might explain their weakness in opposing Republican judicial nominees like John Roberts and Samuel Alito?
The conversation then turned to one of the major players from the Bork hearings, former Senator Arlen Specter. Fineman asked the panelists for their thoughts on Specter, who switched over to the Democratic Party and then lost in the Pennsylvania Senate primary. Van Taylor suggested one possible take: Specter’s downfall is a cautionary tale, teaching that “it doesn’t pay to sell your soul to the Devil.” More charitably towards Specter, Van Taylor raised another possibility: perhaps the lesson is that it’s no longer possible to be a moderate or to cross party lines, thanks to the increasing polarization of American politics.
(Fineman echoed that sentiment. Referring to a scene in the movie in which Steve Schmidt, an operative on John McCain’s 2008 presidential campaign, is shown escorting then-Judge Alito into the Senate for his hearings, Fineman described Schmidt as “thuggish” and said that seeing him involved in the SCOTUS process “made my heart sink.”)
Fineman jokingly observed that these days it seems “Supreme Court justices are grown in petri dishes.” The recent nominees all seem to have lived such careful lives, steering clear of any controversy that might derail their careers later. He asked the panelists: Is this a good thing? (Cf. David Brooks on Elena Kagan.)
Rosenkranz opined that it’s not healthy for the judiciary if the only people who can make it on to the Court are colorless and careful, as opposed to people willing to stand up for what they believe in. Justice Thurgood Marshall, who was a crusading civil rights lawyer before he joined the Court, is a good example of a lawyer for a cause who made it to SCOTUS.
The floor was then opened to questions from the audience. As is often the case, most of the “questions” amounted to angry rants from liberal old people who live in rent-controlled apartments. But one of the questions elicited some interesting information from David Van Taylor about his goals in making Advise & Dissent. As Van Taylor explained, he and his supporters are trying to use the film to create grassroots pressure for more substantive Supreme Court confirmation hearings. Van Taylor wants the Senate to send a message to prospective justices: before we bestow a lifetime appointment to the Supreme Court upon you, “you need to tell us what kind of judge you’ll be.”
It’s an admirable goal, even if it’s unlikely to be achieved in the near (or even not-so-near) future. Regardless of your own views on this issue, check out Advise & Dissent if you get the chance. It’s a thoughtful, thought-provoking, fair-minded examination of the critically important yet often misunderstood process of Supreme Court confirmation.
P.S. The Advise & Dissent screening and discussion were sponsored by Orrick, in conjunction with the Creative Coalition, and hosted by the Brennan Center at NYU Law School. Thanks to all of these organizations for an enjoyable evening.