ARC's 1st Law: As a "progressive" online discussion grows longer, the probability of a nefarious reference to Karl Rove approaches one

Tuesday, July 05, 2005

On Consulting with the Minority Party for SCOTUS Nomination

Byron York provides insight (and a rebuttal) to all the Lefties talking about how Bush should consult with Ted Kennedy before making a pick. Sure, Bush should give them a call... but that doesn't remove Bush' right to nominate a candidate that is in-line with his philosophy that a Supreme Court justice should be bound by the texts of the Constitution (THE U.S. CONSTITUTION, JUSTICE BREYER!!!)

Sure, Clinton talked to Hatch... but Clinton got his two liberal appointments, as is his perogative.

Advice and Consent? How Clinton Chose Ginsburg
Did Clinton really let Republicans guide his decision-making?

After Republicans cited the confirmation of Supreme Court Justice Ruth Bader Ginsburg as a model of how a Senate confirmation should work — Ginsburg went from nomination to confirmation in less than seven weeks with little Republican opposition and was not forced to give her opinions on hot-button issues like abortion, gun control and gay rights — some Democrats have countered by arguing that Ginsburg succeeded so quickly because President Bill Clinton consulted closely with Republicans, then in the minority in the Senate.

Democrats have cited a portion of Sen. Orrin Hatch's autobiography, Square Peg: Confessions of a Citizen Senator, as evidence that Clinton worked extensively with Republican senators. In the following passage, Hatch discusses telling Clinton that his top choice, Interior secretary and former Arizona governor Bruce Babbitt, would have a hard time in the Senate:
I told him [Clinton] that confirmation would not be easy. At least one Democrat would probably vote against Bruce, and there would be a great deal of resistance from the Republican side. I explained to the President that although he might prevail in the end, he should consider whether he wanted a tough, political battle over his first appointment to the Court.

Our conversation moved to other potential candidates. I asked whether he had considered Judge Stephen Breyer of the First Circuit Court of Appeals or Judge Ruth Bader Ginsburg of the District of Columbia Court of Appeals. President Clinton indicated he had heard Breyer's name but had not thought about Judge Ginsberg.

I indicated I thought they would be confirmed easily. I knew them both and believed that, while liberal, they were highly honest and capable jurists and their confirmation would not embarrass the President. From my perspective, they were far better than the other likely candidates from a liberal Democrat administration.

The lesson, writes Markos Moulitsas of the left-wing website DailyKos, is that "Bush should follow Hatch's wise example." But a look at another account of the Ginsburg case suggests that while Clinton did consult with Hatch — just as President Bush has with some Democrats today — Clinton's preeminent concern was making sure that, after a series of failed executive-branch nomination, members of his own party, then in the majority in the Senate, would support his nominee. And in Babbitt's case, a powerful argument against his nomination was made by a Democratic senator from Babbitt's own state.

The best inside account of the selection process is in George Stephanopoulos's Clinton memoir, All Too Human. Stephanopoulos writes that Clinton's first choice for the court was New York Governor Mario Cuomo, but that Cuomo put the White House on an extended and frustrating period of waiting as he tried to make up his mind about whether to accept a nomination. "Clinton was ready to appoint Cuomo," Stephanopoulos writes — the president had even crafted his description of the idea justice with Cuomo in mind — but "Clinton hated how Cuomo always made everything so difficult."

So the president turned to other candidates. There were dozens. Clinton's next favorite was his friend from Arkansas, Richard Arnold. Liberals wanted Harvard's Laurence Tribe. Yale professor Stephen Carter's name came up, as did that of First Lady Hillary Rodham Clinton.
After two months, Stephanopoulos writes, the top of the list came to include Interior Secretary Bruce Babbitt, First Circuit Court of Appeals Judge Stephen Breyer, and a group of candidates Stephanopoulos calls "firsts" for diversity purposes: David Tatel, who was blind, Jose Cabranes, was Hispanic, and Ginsburg, who, Stephanopoulos writes, "would be the first Jewish justice since Abe Fortas, and the first woman to be appointed by a Democrat. More important, she was a pioneer in the legal fight for women's rights — a female Thurgood Marshall."

Babbitt was first to go. [...]

Breyer was next to go. Even though he was strongly supported by his old boss Sen. Edward Kennedy, Breyer not only had a "nanny problem," then a fashionable issue on Capitol Hill, but he also failed to impress Clinton during a one-on-one meeting.

That left Ginsburg, whom Clinton, after months of deliberating, nominated on June 14, 1993.[...]

Name one centrist/moderate in that list of judges. Arguably, Babbit was perhaps the most centrist of the bunch, and Hatch advised Clinton that even the Dem party wouldn't support the nomination. He certainly was more centrist than the General Counsel of the ACLU who is now the most liberal Justice on the court.

Your Co-Conspirator,
ARC: St Wendeler