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Consultation and the Clinton/Hatch Example:
Lots of blogs are linking to 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 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.
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