Consultation and the Clinton/Hatch Example:
Lots of blogs are linking to this post at 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 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 months 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 at least some 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.
Is it really any more complicated than the fact that when Clinton was president, the GOP had a majority in the Senate?

As you say at the end, it's more political necessity than anything else.
7.5.2005 12:58pm
Fr. Bill:
Good post. I would add to it that if one were to ask whether either of Clinton's nominees are any closer to the way that most "conservatives" would approach the law than the names being touted at the moment are to "liberal" jurisprudence, the answer is pretty clearly no. Clearly Justice Ginsburg was not chosen as a "moderate" and was not chosen to "maintain balance." That Hatch thought her more easily confirmable than Babbitt was not a commentary that she would do more things that conservatives like. It was a reflection that she was not a politician with a record of infuriating western state Republicans, nothing more.

Did anyone think then, and does anyone think now, that these two justices are "moderate" whatever that's supposed to mean? The fact is, when it came to their nominations, Republicans behaved the way parties who have lost the White House traditionally do, by allowing the winner wide berth in the selection of his appointments to the Supreme Court. It appears that Sens. Schumer and others are willing to deviate from that tradition and call anybody who is not on record supporting Roe an "extremist," worthy of filibuster. That will bode very ill for the future of nominations if the party remains in lockstep with such a strategy, as it is hard to imagine Republicans not doing likewise in the future. (Unless, of course, they finally engage the "nuclear option" to return things to the way they once were.)
7.5.2005 1:05pm
Everyone wants to rewrite history in the most advantageous way to themselves. Does it make any sense to argue that the Republicans generously gave Clinton broad latitude when it came to Supreme Court nominees, even though they killed scores of nominees to the lower courts in committee? Did they somehow believe the lower courts were more important than the Supreme Court? Obviously not.

Ginsburg and Breyer were broadly accepted because they were both relatively close to the political center, notwithstanding modern attempts to reinvent them as the second coming of Justices Douglas and Brennan. And there is little doubt that if the next nominee were a right-leaning equivalent of Ginsburg or Breyer, they would sail through with relatively little opposition.

This is a good post by Prof. Kerr and he is most likely right about Clinton's motivation. It takes a great deal of partisanship, however, to make the argument that one side is motivated solely by political self-interest while the other side is motivated by selfless respect for the institutions of government. In the current climate, both sides' decisionmaking processes are driven by no principle other than "what they think they can get away with," and it is silly to pretend otherwise.
7.5.2005 1:31pm
WB: The Democrats had a majority in the Senate in 1993 and 1994, when Ginsburg and Breyer were nominated and confirmed.
7.5.2005 1:54pm
The GOP was in the minority when Ginsburg and Breyer were nominated and confirmed.

Their confirmation doesn't indicate that they were less important than lower court nominees, but that the GOP didn't believe that the usual tools to sidetrack nominations were available in those cases.

I don't believe that Ginsburg is "relatively close to the political center." Breyer is closer, in my view, to the political center, in that he doesn't always line up with the left of the Democratic party.

What would a right-leaning equivalent of Ginsburg? Steve Calabresi? I mean, it's hard to think of someone on the right who is both an activist in the largest and most influential legal organization on the right and who has an academic background. But if that's the sort of nominee that we should be looking for, well, consider it done...
7.5.2005 2:00pm
Fr. Bill:

I would not wish to make the claim that Republicans acted out of any greater virtue as a party. And their treatment of Clinton's lower court nominees was shabby in many instances, and contributed to today's climate. But it was shabby because then it was possible to do that without most people noticing. It was not thought possible to treat Supreme Court nominees shabbily and fly below the radar while doing so. We shall see whether Democrats will make the same judgment about whether they can get away with a filibuster or not in today's political climate.

I am not sure what "relatively close to the political center" means in this context. I suppose a lot turns on "relatively." There were a lot of non-mainstream opinions given by Ginsburg in her career as a lawyer and academic on a wide range of issues, especially gender and the law. The question is not where one falls on a political spectrum, but how one makes use of legal materials. The result-orientation of Breyer's pragmatism, and the toothlessness of Ginsburg's variety of "originalism" place them beyond the range of people Republicans would like to see on the court, if they had their druthers.

My point is that, if we take Justice Scalia, he was a known quantity when he sailed through the Senate 98-0 pre-Bork, and even post-Bork Republicans did not look to recapitulate that episode with Breyer and Ginsburg. There is no reason to believe that Luttig or Garza, who would likely resemble Scalia on the court, would receive such support today. Is this because Scalia is not "out of the mainstream" in a way that he was not before? Is he an "extremist"? No, and neither is Breyer, and neither is Ginsburg. Each within, to my mind, an acceptable range of judicial behavior, however much I might prefer Scalia to the other two. And a Garza or Alito or McConnell is deserving os similar support if such is nominated.

It may be that I am wrong in imagining that such nominees will not provoke a filibuster from the Reid-Schumer led Dems; I would be happy to be wrong about that.
7.5.2005 2:05pm
This is a great post, though it seems to me that many similar considerations might apply to Bush's situation. Bush has had trouble getting two high profile nominees through the Senate--Kerik, who of course withdrew, and Bolton, he's also been having trouble getting support for some of his legislative priorities like social security, and his approval ratings are terrible. I'm sure many Republican Senators (and House members, even though they won't be involved in the process their approval ratings are tied in many ways to Bush's) would prefer a conservative equivalent to Breyer and an easy confirmation hearing to a hardline conservative from the Dobson wing of the party and a tough battle. So, it seems to me that Bush's situation is really not that different from Clinton's in many respects. On the other hand, there are differences in that Clinton's first picks didn't want the job and he only turned to Hatch after that. Another difference is that Clinton had to worry about reelection in 1996 so a tough battle could have real consequences for him personally. Most importantly, I think, is that the religious right cares far more about this than did the Dem base in 1993. Sure, an SC nomination is always a big deal but Clinton was not in danger of losing his base over it. In this situation, the religious right feels that they've been working for the party for 25 years with very little to show for it and they want results. If they aren't sure about the nominee on Row, many will start threatening to leave the party. I think Steve is right on the money in his comments, this is about what each side can realistically get and the political calculations of whether a big fight is worth it.

Anon: I think a conservative equivalent of Ginsburg would be a Kozinski or a Posner. Both solid conservatives but still more middle of the road than a Scalia or Thomas.
7.5.2005 2:08pm
Thanks, Steve and Anon.
7.5.2005 2:27pm
Steve: Ginsburg and Breyer were broadly accepted because they were both relatively close to the political center, notwithstanding modern attempts to reinvent them as the second coming of Justices Douglas and Brennan. And there is little doubt that if the next nominee were a right-leaning equivalent of Ginsburg or Breyer, they would sail through with relatively little opposition.

Ginsburg and Breyer "close to the political center"? Who says? Sure, they weren't quite as gung-ho about expanding due process rights for criminal defendants or welfare recipients, or 4th Amendment rights, etc., as the Warren Court was. But they didn't have to be, because much of that expansive liberalism was already out there. There wasn't much further to go in the due process direction without getting totally ridiculous.

But there's no reason to think that Ginsburg and Breyer wouldn't have have been the "second coming of Justices Douglas and Brennan" -- if they had come along in the 1960s instead of the 1990s. Indeed, even in the 1990s-2000s, Ginsburg and Breyer have reliably voted to strike down various uses of the death penalty, to extend the 4th Amendment, to protect affirmative action, to protect abortion in every possible way, etc., etc. On every social issue, they are reliable liberal votes. To say otherwise is playing with semantics.
7.5.2005 2:47pm
Greedy Clerk (mail):
Breyer is closer, in my view, to the political center, in that he doesn't always line up with the left of the Democratic party.

Yeah, anon, Ginsburg always lines up with "the left of the Democratic party." Because "the left of the Democratic party" routinely supports affirming death penalty convictions, making it easier for cops to arrest people pretextually (see Whren &Devenpeck), etc. Just because she has a Jewish name does not make her a radical leftist. Compared to real liberals on the Supreme Court like Marshall, Brennan and Douglas, Ginsburg is a moderate. End of story.

7.5.2005 2:59pm
"On the D.C. Court of Appeals, to which [Ginsburg] was appointed by President Jimmy Carter in 1980, she has become a swing vote. A 1988 computer study by Legal Times newspaper found that she had sided more with Republican-appointed colleagues than [with her] Democratic counterparts. In cases that were not unanimous, she voted most often with then-Judge Kenneth W. Starr, who became George Bush's solicitor general, and Laurence H. Silberman, a Reagan appointee still on the court."

When I said Ginsburg and Breyer were "relatively" close to the political center, I was imprecise in that I didn't specify "relative to what." My point was that they are closer to the political center than Scalia, Thomas, or some of the names currently being bandied about for the vacancy.

People like to bring up some of Ginsburg's non-judicial statements but it's funny how they never bring up the fact that she publicly criticized Roe v. Wade.

All of these arguments are merely attempts to move the goalposts in one direction or the other. The idea that Ginsburg was pretty much the most liberal candidate Clinton ever could have nominated, and yet Orrin Hatch freely suggested her name, is a bit hard to credit however.
7.5.2005 3:03pm
Greedy Clerk (mail):
Anonymous, you are simply wrong in stating that if Ginsburg and Breyer had been around when Justices Brennan and Douglas were around they would have voted the same. One issue comes to mind: the death penalty. Douglas and Brennan believed the death penalty per se unconsitutional. Ginsburg and Breyer routinely affirm death sentences and have even joined summary reversals of Ninth Circuit vacaturs of death sentences (ie they have voted to reinstate a death sentence with on briefing or oral argument). On other criminal issues as well, the two have been much closer to the political center. So, you are just wrong. But thanks for coming out --- maybe you'll make the team next year.
7.5.2005 3:04pm
Steve, thanks for the clarification on the meaning of political center. Now we know that Ken Starr can be confirmed...
7.5.2005 3:23pm
jgshapiro (mail):
Anonymous, I don't see how you can legitimately say that Ginsburg and Breyer are not more centrist than were many of their fellow Democratic counterparts before their appointments to the Supreme Court. If you are looking for someone to compare Ginsburg to (other than Douglas or Brennan circa 19060), how about Patricia Wald, Harry Edwards or Abner Mikva, her fellow democrats on the DC Circuit before her elevation. She routinely voted differently than they did on cases to come before the DC Circuit.

As for Ginsburg's and Breyer's votes on the Supreme Court, ask yourself how a Brennan or Douglas would have voted on issues such as a constitutional right to die, as compared with Ginsburg and Breyer.

There are probably many Republican appointees who would fit the mold of Ginsburg or Breyer from the right, in the sense that they would never be appointed by a Democratic president, but would not engender much opposition from the left, who would look at them as the best the left could hope for. Prado and Mukasey are two that the Dems have suggested.
7.5.2005 4:03pm
A Blogger:
Greedy Clerk,

Re the Brennan and Marshall views on the death penalty, does that view make Brennan and Marshall more liberal, or just more likely to vote to make their personal preferences law? I gather Ginburg and Breyer are personally against the death penalty, nd they always vote to chip away at it when they can. They're just not quite ready to say "screw it" and reach the bizarre conclusion that the death penalty is always unconstitutional.
7.5.2005 4:11pm
Fr. Bill:
Steve and Greedy, yes, there were more liberal justices on the Court in the past than Breyer and Ginsburg. They do constitute the liberal wing of the court now, and reliably so. Their death penalty votes are not unmixed, however; they joined decisions adopting the "evolving standards of decency" jurisprudence to get rid of certain categories of capital punishment. (For the record, I favor abandoning the death penalty entirely; I hope some day to win that issue at the ballot box, and not by voting for presidents who will appoint justices to make that change for me).

Steve, thanks for clarifying your remark about "relatively." I still do not see it as particularly relevant here, nor is it so obviously true. Which justices' party has had more electoral success of late? Is the political center all that obviously closer to Breyer and Ginsburg than to Scalia and Thomas as measured by (a) presidential elections, (b) Senate Elections, (c) House elections? It's not obvious. We did have a president run twice on an explicit pledge to appoint more people like Thomas and Scalia to the court; perhaps it is your view that he won despite and not because of that promise. That is entirely possible, but it is not so obvious.

More to the point, I don't think the political views are what is relevant here. Bruce Babbit was not a raving lefty either--he was recommended against for political reasons but not for the extremism of his views, certainly not because he seemed less "moderate" than Breyer or Ginsburg. That's my relatively modest point. (Oh, and despite her public criticism of Roe, there was no doubt that Ginsburg believe you could extract a right to abortion out of the Constitution--she just preferred, as I recall, an equal protection argument. There was no ambiguity about her sharing in the overall fiction; she merely preferred a different "just so" story.)

I am interested in both of your responses to my query about the Scalia confirmation then and now. I don't think that it is only one party "shifting the goalpost." Ted Kennedy admitted as much on Stephanopolous this weekend, noting that he had in the Bork case abandoned his earlier view that "ideology" should play no part in confirmations. I'm saying that the Republican party did not play the Bork game with Breyer and Ginsburg because they were not inclined to, not because the nominees were "moderate." I still think, having been victimized by the Bork episode, Republicans are less prepared as a party to go that route in the future. But if a Garza or Luttig gets similar treatment now (rather than a 98-0 vote), all bets are off for the future, and that would be even worse than now.

I will also grant you this: there are names that Pat Leahy might recommend who would be better justices than Breyer or Ginsburg (by my lights) but not as good (by my lights) as Scalia. What of it? The question is whether there is any plausible argument that there is cause to filibuster a nominee for being like Scalia or Thomas. There is no general obligation to let the opposition define the choice set, even if they actually make reasonable recommendations. But if, when Leahy says "Ann Williams," W says "nah, Mike McConnell," I don't see that Bush will have failed in any recognizable duty, which I took to be a central query in all of this.
7.5.2005 4:11pm
Greedy Clerk (mail):
Their death penalty votes are not unmixed, however; they joined decisions adopting the "evolving standards of decency" jurisprudence to get rid of certain categories of capital punishment.

Only Scalia and Thomas have clearly rejected the "evolving standards of decency" jurisprudence, which has been around long before Ginsburg and Breyer. . . . . But I guess every Justice from the 1950's on is a far-left liberal. . . . It is beyond dispute that Breyer and Ginsburg were not liberal on the respective courts of appeals they sat on, and have not been very far from the center of the Supreme Court since taking their seats there. Stevens is clearly more liberal than they, and Souter is arguably so. Keep moving the goalposts (hell at NRO and Clownhall, Kennedy is routinely referred to as an "activist librul") and soon Rehnquist will be viewed as a moderate to liberal justice.

7.5.2005 4:20pm
Steve and jgshapiro -- the notion that Ginsburg was/is a "centrist" because she voted with Starr or Silberman on the D.C. Circuit is misinformed. The D.C. Circuit hardly ever hears hot constitutional issues -- abortion, etc. By far, most of its docket revolves around technical issues of federal energy or labor law, appeals of administrative rulemakings, and so forth. What determines the outcomes of those cases is not the judge's political ideology as much as the judge's willingness to defer to administrative agencies. The fact that Ginsburg voted with Ken Starr (or disagreed with Edwards) on whether to defer to FERC on a natural gas pipeline case has absolutely nothing to do with whether she is a "liberal" as traditionally understood.
7.5.2005 4:29pm
A Blogger:
Greedy Clerk,

Hasn't Justice Stevens moved to the left? My vague recollection is that in Bakke, he was with conservatives Rehnquist and Burger as being against affirmative action. He had flipped by the time of Grutter, of course.
7.5.2005 4:29pm
So-called "Greedy Clerk": How is Stevens "clearly" more liberal than Ginsburg or Breyer? They all vote together most of the time. Stevens is markedly more hostile to religion than Breyer is (compare Stevens' concurrence in Boerne to Breyer's votes in Mitchell v. Helms or the Texas Ten Commandments case). But in what other context has Stevens taken positions that were any more "liberal" than Ginsburg/Breyer? On all the hot-button issues of the day -- abortion, affirmative action, gender discrimination, homosexuality -- they have been predictable liberal votes in every case.
7.5.2005 4:40pm
Fr. Bill:

Your humor is always appreciated. I think the mystery of life stuff in Casey and Lawrence constitutes liberal activism, and I think the finding of a constitutional limitation on jury awards in BMW v. Gore constituted conservative activism. This is why I have been somewhat befuddled at the focus on the "political centrism" of particular nominees. Is Kennedy a liberal justice? Sometimes, when it suits him--in death penalty cases, in privacy cases. Other times not. To the extent the the court inserts itself into "culture wars" Kennedy is more a liberal hero than a conservative one, no?

Here your own shifting of the goalposts argument turns on itself. Sure, once the heavy lifting of liberalism was done by the Warren Court, even "conservative" Rehnquist signing onto Miranda rights as somehow "Constitutional Principles" (whatever those are) wouldn't constitute a liberal vote for you. Similarly, once "evolving standards of decency" is invented and adopted, it's just centrist to adopt it, by your lights. But if voting to keep in place what the Warren Court did under stare decisis is by definition not liberal, then of course I won't be able to win any argument, and any originalist justice will be "extremist." My point is we knew what Scalia was when he was nominated, and he went through 98-0. Thomas also was not filibustered. Who has shifted the goalposts since?

The disappointment that some of us have with Kennedy and O'Connor is that they did not follow a consistent jurisprudence, and in some cases (Lawrence and BMW are perfect examples, one for a "liberal" result, the other for a "conservative" result) went whole-hog for the worst kind of unfettetered judicial lawmaking. (Though O'Connor tried to find a way in Lawrence to be more restrained). Again, Rehnquist's opinion upholding Miranda was similarly baffling. Not because "he's a liberal" but because a usurpatious (and in that case liberal) precedent was needlessly upheld.

I think, in sum, that the Rehnquist Court which has upheld Miranda, abortion on demand (see Stenberg), limitations on the death penalty arising out of nothing in the Constitution, substantive due process limits on jury awards, restrictions on political speech (campaign finance reform--how's that working out?) inconsistent with the first amendment's core protection, some kind of fundamental-or-maybe-not right of sexual autonomy, and the right of the collective economic interest to trump your home ownership is a court that has lost its moorings.

Some of its mistakes have been more conservative than others, as politics applies the terms. But all of them partake of the more fundamental error of being the product of a court that sees few if any limitations on its role as Platonic guardians. Is that librul or conservative? I don't much care.
7.5.2005 4:42pm
I wasn't arguing any conclusion in particular by saying that Breyer and Ginsburg are relatively closer to the center; there's nothing particular magical about a centrist Court, even if we could agree on what the term means. Democrats do not have the moral high ground because they are currently pushing for a "moderate"; like everyone else, they are just pushing for the outcome they see as most favorable to themselves.

Anon's comments about the D.C. Circuit are telling in that they highlight the oversimplicity of the conservative/liberal dichotomy. To some people, it's all about your views on abortion and gay marriage. To others, it's about whether you are for or against more stringent regulation of businesses. To others, it's about whether you are for broader federal power or for states' rights. For example, in the Kelo case, the "liberal" Justices deferred to the rights of state and local governments to define the scope of the eminent domain power, while the "conservative" Justices argued for a broad interpretation of the Bill of Rights in order to protect individual liberties. Obviously, substitute a different issue of "individual liberties," and these views would all flip-flop. So yeah, arguing about how extreme or moderate a particular Justice is likely depends on which issues you see as most important, and our system of labels is unavoidably imprecise.
7.5.2005 4:58pm
james (mail):
In the Kelo case the "conservative" justices argued that the Constitution did not allow the use of eminent domain to move property from one private party to another private party. That reference to "public use" in Article V was not met by increased tax revenue via private party land transfer. This is not the same as the Federal stance that Congress must define the limit of eminent domain.
7.5.2005 5:37pm
NickM (mail) (www):
Hatch didn't put forward names to Clinton as an "all-or-nothing" approach, or threaten a filibuster. Hatch informed Clinton that GOP Senators would fight hard against certain possible Democrat appointments, and suggested others that he was confident would win easy confirmation - and both of these were leading figures in the legal establishment and widely mentioned names in Democrat circles for possible appointment.

I don't know what private communications may be occurring between the White House and the Senate Democratic leadership, but I am hopeful that there are discussions where lists of potential names are being floated for comment by the White House and to be introduced into the process by the Democrats (and unknowns like Judge Prado being promoted by ad hoc interest groups don't count).

I think the difference between then and now is that Reid may have a much more time being able to avow that his caucus would not fight a McConnell, Luttig, Wilkinson, Kozinski, or similar judge that President Bush might be considering appointing. Perhaps the best Reid could do was his statement mentioning 4 GOP Senators as possibilities.

A protracted fight over a Supreme Court nomination is far more than a risk to President Bush's political capital. It also can adversely impair passage of other elements of his program - if for no other reason than the Senate's time being limited. Even winning the Supreme Court nomination fight and building political capital doesn't undo collateral damage to his agenda. That's why Clinton consulted with Hatch.

7.5.2005 5:49pm
Daniel Chapman (mail):
"(hell at NRO and Clownhall, Kennedy is routinely referred to as an "activist librul")"

I can't speak for "clownhall" since I've never heard of it, but as a daily reader of NRO I can honestly say I've never heard the term "activist librul." Come to think of it, I think the only place I've ever seen that spelling is at DailyKos. hmm.
7.5.2005 8:39pm
Andrew J. Lazarus (mail):
Let's see if W nominates Luttig or Garza before complaining that the Democrats are running a filibuster on them. I'd say it's more in the President's crush and humiliate the enemy style to pick Roy Moore.
7.5.2005 9:06pm
Fr. Bill (mail):

I'd support a filibuster of Roy Moore--that would be extraordinary. On the other hand, Barbara Boxer said she and the Dems will filibuster any anti-Roe person, so we already know there are plans to filibuster Garza, since he's on record, as are so many, opposing Roe.

Fr. Bill
7.5.2005 11:17pm
jgshapiro (mail):

The fact that Ginsburg voted with Ken Starr (or disagreed with Edwards) on whether to defer to FERC on a natural gas pipeline case has absolutely nothing to do with whether she is a "liberal" as traditionally understood.

I don't buy this. While Ginsburg's record at the DC Circuit on constitutional issues may not have been as clear than if she had been on another circuit, it was all the Republicans had to go on as to how she would behave as a judge (as opposed to as an advocate for women's rights before she became a judge). Her votes showed that she was not a doctrinaire liberal, but was open minded enough to join with conservatives in individual cases. Breyer too had a reputation as being a not-doctrinaire liberal on the 1st circuit.

I think that is why Hatch, et. al., decided that they were not to be blocked or otherwise fought: the Republicans thought that Ginsburg and Breyer were as centrist as they could reasonably get from a Dem President. (This is the same conclusion that the Dems came to with Kennedy in 1986).

So to carry the point forward, if Bush nominates someone who is generally conservative but not doctrinarily so -- who has demonstrated their willingness to vote with Democratic appointees to appeals courts in individual cases of any significance, presumably the Democrats would let them go through without a fight to the death and/or a filibuster.

I don't know who on Bush's short list would qualify for the Dems, but I am guessing most of the people I have seen suggested by Republicans for the short list don't, except perhaps Gonzales, Wilkinson, McConnell and maybe Kozinski.

Certainly Luttig, Roberts, Alioto, Brown, Garza, and Jones don't.
7.6.2005 5:16am
jg--why wouldn't Roberts qualify? Or Garza, for that matter? Have you run the numbers?
7.6.2005 12:36pm

You're not getting the point: There's NO SUCH THING as a "doctrinaire liberal" or a "doctrinaire conservative" when it comes to the vast majority of administrative appeals (the mainstay of the D.C. Circuit's docket). It's not as if the "liberal" position is "defer to the agency no matter what," or vice versa. Some liberals defer some of the time, and some conservatives do too. In fact, I recall seeing an article pointing out that about 97% of D.C. Circuit cases are unanimous. I.e., whatever differences liberals and conservatives have on the D.C. Circuit, those differences just don't show up in the overwhelming majority of cases.

Moreover, if your standard is whether a conservative nominee has "demonstrated their willingness to vote with Democratic appointees . . . in individual cases of any significance," then you have no basis whatsoever for saying "maybe" Kozinski, much less excluding Luttig and Roberts (in particular). I don't know as much about the voting patterns of Alito, Garza, or Jones.
7.6.2005 12:40pm
jgshapiro (mail):

And yet, there was a consensus that Ginsburg was the most moderate of the DC Circuit Democratic appointees at the time of her nomination, notwithstanding her strong public advocacy for women's rights before her appointment to the DC Circuit (which would generally tend to put you in liberal circles, from the media's point of view).

So, if this perception was not from her willingness to vote with Republican appointees on the DC Circuit, where did it come from? Why would Republicans have been more willing to let her through than any of the other DC Circuit Dems (e.g., Wald, Edwards, Mikva)?

As for Kozinski, I am certainly no expert on him, but I do recall seeing a few high profile cases in which he notably did not vote with other 9th Circuit conservatives (Kleinfeld, O'Scannlain, etc.) but either voted with Democrats or took a middle road approach. I cannot name these cases off the top of my head, however. I have also read a number of profiles of him in the last week describing him as very pro-first amendment, which tends to mollify liberal opposition somewhat. That could be outweighed by other factors though, which is why I said "maybe."
7.7.2005 4:10pm