Clinton Pledges To "Change The Face" Of The Lower Courts
Hatch aims to make Democrats pay a political price for bad judicial picks
On August 3, 1993, the Senate confirmed President Clinton’s nomination of Ruth Bader Ginsburg to the Supreme Court. Three days later, Clinton made his first batch of lower-court nominations, three to federal appellate courts, ten to federal district courts. In a statement on the nominations, Clinton declared:
There are few things that I will do that will have more lasting effect than the appointment of Federal judges. Along with Ruth Bader Ginsburg on the Supreme Court and the many other judges yet to be named, this outstanding group of jurists will change the face of the Federal courts and help move our country forward.
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Clinton inherited around 100 judicial vacancies from his Republican predecessor, George H.W. Bush, including 16 vacancies in federal appellate seats. Bush left so many vacancies because the Democrats exerted their control of the Senate to engage in unprecedented obstruction.
Among the many nominees that Senate Democrats obstructed was an extraordinarily talented young lawyer by the name of John G. Roberts, Jr. Bush nominated Roberts to the D.C. Circuit on his 37th birthday in January 1992, but Senate Judiciary Committee chairman Joe Biden never afforded Roberts a hearing on his nomination. (No one back then made the loony argument, concocted in 2016, that the Constitution somehow requires the Senate to give judicial nominees a hearing and a floor vote.)
Senate Democrats also used the Judiciary Committee’s “blue slip” policy to block nominees and to extract concessions. The blue-slip policy invited home-state senators to weigh in on judicial nominees for their states. When a home-state senator either returned a negative blue slip or declined to return a blue slip altogether, Chairman Biden had broad discretion to prevent committee action on the disfavored nominee. The prospect of a negative blue slip in turn forced the Bush White House to negotiate in advance with Democratic senators over who should be nominated. The inability to reach agreement meant that nominations were never even made for many vacancies.
A previous consequence of the blue-slip policy was the deal that the two senators from New York, Democrat Daniel Patrick Moynihan and Republican Al D’Amato, had forged. Under that deal, the senator who was not of the same party as the president could dictate one of every four district-court nominees in New York. In 1991 Moynihan picked 37-year-old Sonia Sotomayor for a vacant seat. The White House resisted nominating her because she was so liberal. It did so in the end only as part of a package to move along other nominees whom Moynihan was holding up. The Senate confirmed Sotomayor’s nomination in August 1992.
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In reviewing candidates for judicial nominations, every White House sorts through a mix of factors. These factors include legal ability, judicial philosophy, experience, reputation, and age. They also include campaign contributions, ties to home-state senators, and political ideology. And they include diversity of race, ethnicity, and sex.
I will not address here the broader dispute over what role these demographic diversity factors should play in judicial selection. The reality of a nomination and confirmation process that is inherently political is that demographic factors have always been part of the process, even as the questions of who counts as diverse (e.g., is an Italian American a minority?) and how much weight diversity should be given have varied.
Democratic presidents have placed a much greater emphasis on demographic diversity than Republican presidents have. Given the strong correlation between favored diversity factors and political ideology (especially among lawyers), Democratic presidents have had a much larger pool of diverse candidates to draw from.
Jimmy Carter set the model that subsequent Democratic presidents have aimed to follow. As Nan Aron, longtime head of the liberal group Alliance for Justice, has celebrated, “Carter did more to reshape the nature and direction of our federal courts than almost any Democratic president before of since.” Before Carter became president, “only eight women and 31 racial minorities has ever been confirmed as federal judges.” But Carter “succeeded in appointing 41 women and 57 racial minorities to the federal judiciary” in his single term. (Carter was aided by a 1978 law that created 152 new judgeships—nearly a 30% increase.)
Clinton’s pledge to “change the face of the Federal courts” reflected his own strong commitment to demographic diversity. Clinton also knew that his rhetoric of “diversity” could provide political cover for any diverse candidates who had records that raised concerns, as objections to such candidates could be derided or dismissed as racist or sexist.
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For all the attention that Supreme Court nominations receive, lower-court nominations are the everyday work of the Judiciary Committee. The Committee chairman has broad power over the pace at which nominations move. One traditional constraint is that the committee’s non-lawyer investigators, from both the majority and minority staffs, need to complete their review of the FBI’s report on the nominee before a hearing on the nominee will be scheduled. (The FBI reports are kept tightly confidential; I never read one.)
Now that Clinton had succeeded Bush as president, Chairman Biden was of course eager to expedite nominations. As a staffer to Senator Orrin Hatch, the lead (“ranking”) Republican on the committee, I had to review nominees’ Senate questionnaire responses quickly and dive into their records in order to identify those who merited more extensive scrutiny and possible opposition.
Senate Democrats held a 56-to-44 margin in the Senate, so I had little hope that we could vote down any of Clinton’s judicial nominees. Nor did we ever give a thought to trying to garner 41 votes to filibuster a nominee—that is, to prevent the 60 votes needed to obtain cloture (the formal step under the Senate rules that precedes a final confirmation vote). Although judicial nominations were technically subject to the 60-vote cloture threshold, there was a strong bipartisan consensus that the filibuster should not be deployed against judicial nominations. The existence of that consensus is perhaps best illustrated by the fact that there was no cloture vote on Clarence Thomas’s Supreme Court nomination in 1991, even though 48 senators (more than the 41 needed to defeat cloture) voted against his confirmation.
Our aim was to make Clinton and Senate Democrats pay a political price for nominating and confirming bad picks. A big reason that I had signed on with Senator Hatch after my clerkship with Justice Scalia was to assist Hatch and other Republican senators in making the case for conservative judicial principles and against liberal judicial activism.
Republican senators had very little experience opposing liberal judicial nominees, as Republican presidents had held office the past twelve years and twenty of the past twenty-four. What’s more, many of them had drawn from the defeat of Judge Robert Bork’s Supreme Court nomination in 1987 the lesson that fighting judicial nominees on the ground of judicial philosophy was a losing political proposition for conservatives. I was eager to demonstrate otherwise.
Clinton’s first batch of judicial nominees included Sixth Circuit nominee Martha Craig Daughtrey. Daughtrey had plenty in her three years as a Tennessee supreme court justice to signal that she was very problematic. Just the previous year, in an opinion issued weeks before the U.S. Supreme Court was (wrongly) expected to overturn Roe v. Wade, Daughtrey had written an opinion, replete with frolics and detours, that extrapolated a state constitutional “right of procreational autonomy” from the provisions of the state constitution that protect freedom of worship, that prohibit unreasonable searches and seizures, that guarantee freedom of speech, and that regulate the quartering of soldiers in homes. That case involved a battle between a divorcing couple over rights to their frozen embryos stored in a fertility clinic, and Daughtrey had relied on skimpy psychotherapy articles to invent a right of a voluntary “gamete-provider” to avoid unwanted genetic parenthood. The transparent reason for her meanderings was to ensure a right to abortion under the Tennessee constitution in the event that the Supreme Court overturned Roe.
Daughtrey had never voted to affirm a death sentence. One case involving an unspeakably brutal crime was especially revealing of Daughtrey’s conceit that she was part of an enlightened elite empowered to override the benighted views of the riffraff citizenry.
Donald Middlebrooks, a 24-year-old white male, and two accomplices kidnapped Kerrick Majors, a 14-year-old black youth, decided to “have some fun” with him, tied his hands, and took him into the woods. There, according to Middlebrooks’s videotaped confession, one accomplice, Roger Brewington, beat Majors with brass knuckles, hit him with a stick, and urinated into his mouth; Middlebrooks slapped Majors and hit him with a switch; and the other accomplice burned his nose with a cigarette lighter. Brewington then abused Majors’s testicles and anus, beat and gagged him, and slashed his wrist. Middlebrooks asked Brewington to stop and initially refused Brewington’s direction to stab Majors. But after Brewington stabbed Majors, Middlebrooks did so as well. Majors died at the end of the 3-1/2 hour ordeal.
On Middlebrooks’ appeal of his death sentence, Daughtrey joined an opinion that concluded that a death penalty for felony-murder violated the Tennessee constitution (a conclusion that the Supreme Court had rejected under the federal Constitution) and that condemned the death penalty more broadly:
“Implicit in death penalty jurisprudence is the recognition that the standards of decency are not static but evolving, that society is not stale but maturing, and that the level of community morality will continue to rise until the reasoned moral response of the people of Tennessee will be, if it is not already, that the death penalty is cruel and unusual punishment.”
In Daughtrey’s eyes, no one exercising mature moral reasoning could judge that the brutality that Middlebrooks inflicted on Kerrick Majors called for the death penalty as a response.
Daughtrey had also opined that the Tennessee constitution protects obscenity.
At her confirmation hearing on October 20, 1993, Hatch asked tough questions of Daughtrey, and she did not come across well. But Hatch decided to give her a pass. He wanted to be sparing in the fights that he picked, and Clinton had just nominated to the Eleventh Circuit a candidate with an even more outrageous record that provided an even bigger target, Florida supreme court chief justice Rosemary Barkett.