And another, and different view on the same subject....re Clinton, Ginsburg and Hatch.....
Consultation and the Clinton/Hatch
Example:
volokh.com
Posted by Orin Kerr:
Lots of blogs are linking to
[1]this post at ThinkProgress.org
recalling that President Clinton consulted with Republican Senator
Orrin Hatch when Clinton was looking to fill the seat left open by the
retirement of Justice White in 1993. Some suggest that this example
shows how a President should treat the opposing party's ranking member
of the Senate Judiciary Committee. Clinton consulted with Orrin Hatch
and took Hatch's recommendations seriously, the thinking goes, so Bush
should consult with Patrick Leahy and take Leahy's recommendations
seriously.
The difficulty with this comparison is that it leaves out the
broader context of Clinton's decisionmaking process. Here's my
recollection, aided by some Westlaw searches and David Yalof's
[2]Pursuit of Justices:
According to press reports at the time, Clinton very much wanted to
nominate a Warren-style liberal to the Supreme Court. Clinton wanted
to find a free-thinking politician for the Court instead of a
technocratic career judge. He flirted with the idea of nominating New
York Governor Mario Cuomo, but Cuomo eventually withdrew from
consideration. Clinton then asked Richard Riley, Secretary of
Education and the former Governor of South Carolina, but Riley
declined. Clinton then wanted to name Bruce Babbitt, the Interior
Secretary.
During the many weeks in which Clinton was weighing his options,
however, the need to find someone who would be easily confirmed grew
paramount. (I'm not sure, but I gather it was at this stage that
Clinton consulted with Hatch.) Clinton had encountered tremendous
opposition to some of his executive branch nominees in the early month
of his Administration, and the failed nominations of both Zoe Baird
and Kimba Wood for Attorney General and Lani Guinier for head of DOJ's
Civil Rights Division had caused his administration considerable
political embarrassment. Further, by June, almost three months after
Justice White had announced his retirement, the media was ridiculing
Clintion's inability to even settle on a nominee. Under political
pressure, Clinton decided against nominating a Warren-style liberal
and instead opted to nominate a Hatch-approved more moderate nominee
who could be easily confirmed.
Here is how Thomas Friedman described Clinton's thinking on the
Ginsburg nomnination in the June 15, 1993 issue of The New York Times:
The President's original aspiration was to name a political
figure, with real-world experience and a "big heart," not
automatically another federal judge. But in part because some of
those who fit that description, like Gov. Mario M. Cuomo of New
York, turned him down, and in part because of his political
predicament, those criteria had to be subordinated.
What dominated was his need for a nominee who was risk-free, one
who would not only sail smoothly through the Senate but might
eclipse some of his most recent embarrassments, reconfirm his move
to the political center and give new momentum to his
administration.
Clinton ended up nominating Ginsburg over Breyer for Justice White's
seat, in part because Breyer had not paid social security taxes on a
domestic worker. (This had been Zoe's Baird's problem, and the White
House wasn't sure that they wanted to spend the political capital to
get Breyer confirmed in light of it.) When Justice Blackmun retired
the next year, however, Clinton nominated Breyer. Breyer was not
Clinton's ideal of a model judge, either. Consider Jeffrey Rosen's
description of President Clinton's nomination of Breyer to fill
Blackmun's spot, from the June 6, 1994 issue of The New Republic:
Of course it was painful to watch Clinton's distress on May 13 as
he announced the selection of a man who was plainly not his first
choice. Though Clinton remained sentimentally attached to the model
of a big-hearted politician in the tradition of Earl Warren, he
forced himself, for want of a politically or medically viable
alternative, to choose the antithesis of his own ideal.
As the U.S. News & World Report covered the Breyer nomination in its
May 23, 1994 issue:
Breyer was never the president's first choice. In 1993, he was a
runner-up when Clinton selected Ginsburg. And Clinton first hoped
Senate Majority Leader George Mitchell would succeed Blackmun. The
president also considered Interior Secretary Bruce Babbitt and
Judge Richard Arnold of Arkansas but decided late Friday afternoon
that the Breyer nomination posed fewer questions and less
controversy in the Senate confirmation process.
The same article notes that liberals were upset with Clinton's
choosing an easily-confirmable nominee over a more ideologically pure
one:
Some liberals were disappointed that Clinton did not tap a
reliable vote for their cause. Abortion-rights leaders expressed
concern about Breyer's murky record on that subject. And consumer
advocate Ralph Nader assailed Breyer as "hostile to regulatory law
enforcement." Nader charged that Clinton had "locked the court into
an anticonsumer, antiworker, antienvironmental mode," and predicted
that various labor unions and other liberal groups would oppose
Breyer.
In sum, it's true that Clinton did call Hatch at some point during
the process; Hatch did suggest to Clinton that Breyer and Ginsburg
could be confirmed; and Clinton did in fact nominate Ginsburg and
Breyer. But my sense is that Clinton's consultation with Hatch was a
matter of political necessity more than anything else.
References
1. thinkprogress.org
2. policyreview.org |
