Philanthropy New York created its Documentary Series to get our members thinking about alternative mediums for promoting their missions and the work of their grantees. On September 15th, we were honored to screen Advise and Dissent, a documentary that captures the behind-the-scenes drama of the confirmation battles for three Supreme Court nominees. We asked Doug Kendall, Founder and President of the Constitutional Accountability Center and one of the evening’s panelists, to provide us with a recap.
Philanthropy New York’s screening of the documentary Advise and Dissent at the Paley Center led into a lively discussion about the strengths and weaknesses of both the left and the right’s approach to the Constitution, the law, and nominations to the federal bench.
Advise and Dissent is a terrific new documentary produced by David Van Taylor and Lumiere Productions, which takes viewers behind the scenes of the George W. Bush-era Supreme Court confirmation battles over John Roberts, Harriet Miers, and Samuel Alito. Focusing on the progressive organizing and strategizing of Ralph Neas, then-President of People For the American Way (PFAW), and the conservative counter-punching of Manual Miranda of the Third Branch Conference, the film captures the fierce quality of modern confirmation battles as well as the stakes involved in the outcome of these debates. Two Senate veterans, Arlen Specter and Patrick Leahy, are also prominently featured in their respective roles as then-Chair and Ranking Member of the Senate Judiciary Committee.
After the film, Orlando Bagwell, Director of Media, Arts, & Culture at the Ford Foundation, moderated a discussion with David and me, focused on the lesson of the film for organizations working on judicial nominations in the Obama era. I was included in this discussion because my organization, the Constitutional Accountability Center (previously known as Community Rights Counsel), was involved both in the Bush-era battles and in the more recent debate over the confirmation of Justice Sonia Sotomayor.
The film documents the huge difference that winning elections makes in judicial confirmation politics. Neas’ PFAW, along with a large coalition of progressive organizations, fought long and hard to derail the confirmation of both Roberts and Alito, but the political mountain was too high to climb. Meanwhile, Miranda, working out of his living room without a staff, was quickly able to orchestrate the implosion of the Miers nomination. This shows how important it is for progressive organizations to pay attention to judicial nominations now, when they have friends in the White House and running the Senate. To date, President Obama has moved very slowly and cautiously with his judicial nominations—by this point in President George W. Bush’s first term he had nominated more than 50 judges, while Obama has yet to name twenty. Progressives clearly need to push the administration if they want this issue to be a priority.
The film also powerfully illustrated the sorry state of the Senate hearing process for judicial nominees, which tends to obscure, rather than illuminate, the profound differences between progressives and conservatives about the meaning of the Constitution and the future of the Supreme Court, a problem also fully on display in the more recent hearings for Justice Sotomayor. One of David’s great hopes for the film is that it will help lead to reforms that require nominees to be more forthcoming in their responses and, encouraged by Orlando and terrific questions from the audience, we traded ideas for making this happen.
Finally, the panel broadened its scope a bit in discussing the success that conservatives have had in remaking the courts in recent years and what progressives needed to do to turn the tide. I explained the work CAC is doing to root the results progressives seek from the courts more closely in the Constitution’s text and history and to thereby “take back the Constitution” from conservatives, who have claimed it as their own in recent years. This work is essential because, if we’re going to have an honest and meaningful confirmation process, progressive nominees are going to need to have compelling things to say about their vision of the Constitution and the law.
Doug Kendall is a litigator, author, activist, and nonprofit entrepreneur. He is the Founder and President of the Constitutional Accountability Center (CAC), a think tank, law firm, and action center dedicated to fulfilling the progressive promise of our Constitution’s text and history. Mr. Kendall previously founded and directed the Community Rights Counsel (CRC), CAC’s predecessor organization. He has represented clients in state and federal appellate courts around the country and has co-authored more than a dozen briefs filed before the U.S. Supreme Court. Mr. Kendall is co-author of three books and lead author of numerous reports and studies. He launched and helped direct (with Earthjustice) the Judging the Environment Project, a comprehensive effort to highlight the environmental stakes in the future of the U.S. Supreme Court and appointments to the federal bench. Mr. Kendall has appeared on television programs including Nightline, 20/20, Fox News Sunday, and World News Tonight, and radio broadcasts on NPR, CBS News, and Air America. His academic writings have appeared in scholarly journals including the Virginia Law Review, and his commentary has run in The New Republic, The American Prospect, Slate, and dozens of major papers including The Washington Post, USA Today, and The Los Angeles Times. Mr. Kendall is also a blogger on the Huffington Post, where he “live blogged” the Sotomayor hearings. He received his undergraduate and law degrees from the University of Virginia.