09/22/2010 05:21 pm ET Updated May 25, 2011

Porteous Takes On Water

It was only one witness, Professor G. Calvin McKenzie of Colby College, testifying late on Tuesday afternoon. And he was the last witness of the Senate trial proceedings in the impeachment of District Judge G. Thomas Porteous of New Orleans, which will not go to a vote until after Thanksgiving, well after the November elections. But the episode demonstrated how impeachment trials are so very different from regular trials, and just how dim Judge Porteous' prospects are.

The defense called Prof. McKenzie as an expert witness on the presidential appointments and confirmation process. The target was Article IV of the charges against Porteous. That article accuses him of lying during his confirmation by failing to disclose his prior misdeeds in response to FBI and Senate "catchall" questions about whether anything in his background would disqualify him from becoming a federal judge. Article IV claims that when Porteous failed to disclose his receipt of money from lawyers practicing before him when he was a Louisiana state judge, or of non-cash benefits from bail bondsmen, he committed a "high crime and misdemeanor."

Article IV is thus a bootstrap argument to try to remove Porteous from the federal bench for bad conduct that occurred before he was a federal judge. It is an innovation in the slow-developing world of impeachment law. None of the fourteen earlier impeachment trials has included such an accusation.

Prof. McKenzie has studied the appointment process for thirty years and written extensively on the subject. A recent book is the wonderfully-titled Innocent Until Nominated. The point of his testimony was that successful candidates for high judicial and executive offices virtually always answer "no" to catchall questions whether there is anything bad in their past. The questions, he stressed, are not useful to the process, though on cross-examination he insisted that he sees nothing wrong with catchall questions. They simply, he repeated again and again, are not very helpful. Since the question before the Senate in the impeachment trial is whether Porteous committed a high crime and misdemeanor, not whether the Senate confirmation process is intelligently-structured, McKenzie's testimony could not have been very helpful to the defense.

It turned out way worse than that.

On cross-examination, lead prosecutor Adam Schiff pointed out that background checks about judicial appointees are particularly important because judges cannot be fired, only removed by the cumbersome impeachment process. That was an effective point by the California congressman, who has been a smooth and well-prepared advocate during the trial proceedings. Then, however, Schiff tried to cross-examine the professor by reading him the overheated views of other scholars that Porteous is -- as the Doonesbury cartoon strip put it during the Watergate hearings years ago -- guilty, guilty, guilty. That was empty grandstanding, not good cross.

When the senators questioned the professor, it swiftly became clear not only that Prof. McKenzie's testimony had done no good for Judge Porteous, but that Article IV appeals strongly to them.

The first clue came when the defense initially offered McKenzie as an expert, and committee chair Claire McCaskill (D-MO) expressed some well-mannered but unmistakable pique. She asked why the Senate, which conducts the confirmation process, would need an expert to explain the process to it? Right.

And the questions that came from across the political spectrum of senators made it clear that they did not find Prof. McKenzie very helpful -- from Ted Kaufman (D-DE) to Jim Risch (R-ID), and from McCaskill to Orrin Hatch (R-UT).

As several pointed out, and as Hatch most succinctly and gently stated, there is a reason why successful candidates all seem to have answered "no" to catchall questions about bad episodes in their past. That is because the questions prompt the withdrawal from the nomination process of most candidates who have such bad episodes in their pasts. Those who do not pull out even though they have such bad episodes, the senators made clear, are presumptively lying intentionally. They want the job too badly to demonstrate the good sense to stay in private life.

Lecturing senators about their own jobs, not surprisingly, turned out to be a bad idea for the defense. McKenzie's testimony, and the senators' response to it, underscored one more time the uniquely political nature of impeachment process. Article IV appeals to the senators because they take the confirmation process very seriously and are troubled by the accusation that Porteous lied to them. No one likes being lied to.