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Orrin Hatch Becomes Judiciary Committee Chairman
And I realize it’s time to move on
When the Senate convened in January 1995, Bob Dole became the new majority leader and Republicans had 53 seats. Republican senators took over the chairmanships of Senate committees, and the partisan composition of those committees flipped to Republican majorities.
My boss Orrin Hatch became chairman of the Judiciary Committee, and Republicans on the committee outnumbered Democrats 10 to 8. The Republican contingent on the committee also became markedly more conservative: Liberal Republican Bill Cohen left the committee (as did Larry Pressler). Four newly elected Republicans joined the committee: Fred Thompson, Jon Kyl, Mike DeWine, and Federalist Society co-founder Spence Abraham.
As the New York Times reported in previewing the new Senate, Hatch as Judiciary Committee chairman would “be thrust into the intense ideological battle over how aggressive the Republicans should be in using their new Congressional majority to shape areas like the Federal judiciary.” Hatch remained committed to giving broad deference to Bill Clinton’s judicial nominees, even as he recognized that he would receive increased criticism from conservatives for doing so:
Mr. Hatch acknowledged the pressures he will encounter. "I had lots of pressure on me when I was in the minority," he said, "and you can imagine the pressure will increase many times, because there are some groups that don't want to compromise on anything."
Thomas Jipping, who monitors judicial selection for the conservative Free Congress Foundation, said in an interview that his group would closely watch Mr. Hatch's performance. He said the Senator and other Republicans had explained that they had not resisted the President's judicial nominations until now because their power was limited as a minority. "Well," Mr. Jipping said, "they're the majority now."
The new Republican members of the committee were also surprised by how much deference Hatch was willing to give Clinton. At Hatch’s request, I briefed Fred Thompson on a few of Clinton’s resubmitted nominations (nominations first made relatively late in 1994, returned to the White House at the end of the Senate session, and resubmitted in 1995), including that of law professor Karen Nelson Moore to the Sixth Circuit. Thompson was the most moderate of the new Republicans on the committee, but, in addition to his accomplishments as an actor, he was a very smart lawyer. When I detailed the problematic records of these nominees, he looked concerned and puzzled. “Why are we letting them go through?,” he asked. I could only shrug my shoulders and indicate that that wasn’t a question for me to answer.
The reality was that although Republicans controlled the Senate, conservatives certainly did not. Both political parties were still in the process of resorting themselves ideologically. In addition to a large number of Republicans who strove to be described as moderates, there were at least seven Republican senators who would fairly be described as moderate liberal to liberal: Bill Cohen and Olympia Snowe of Maine, Mark Hatfield and Bob Packwood of Oregon, Arlen Specter of Pennsylvania, John Chafee of Rhode Island, and Jim Jeffords of Vermont. Snowe was new to the Senate in 1995, but the other six had all voted for the nomination of Lee Sarokin and all but Specter had voted for the nomination of Rosemary Barkett.
What this meant is that even with the new Republican majority Hatch could not count on defeating a Clinton judicial nominee on the Senate floor. So if Hatch wanted to stop a nominee, the best ways would be to exercise his prerogative as chairman to prevent the nominee from ever receiving a hearing or to lead committee Republicans in voting against reporting the nomination to the Senate floor.
Karen Nelson Moore ended up getting confirmed by voice vote two months after her renomination.
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As I have recounted, when I signed on with Senator Orrin Hatch in the fall of 1992, I was flabbergasted to hear his chief of staff for his entire Senate operations announce that “We’re in an election cycle, so we’re not going to do anything controversial” and “Clinton won on health-care reform, so we’re not going to fight him on that.”
In November 1994, that two-year election cycle came to an end. Hatch won election to a fourth term by a margin of more than 40 points. What’s more, thanks in part to the massive unpopularity of Clinton’s health-care reform plan, Republicans won control of both the House (for the first time in decades) and the Senate (gaining an extraordinary nine seats).
And nothing changed, so far as I could detect, in how Hatch’s chief of staff approached things.
I thought it unlikely that another Supreme Court vacancy was in the offing. I was tired of internal fights with the front office to get Hatch to advance the principles he avowed. And I had no interest in trying to make a career on the Hill. So I decided that it was time to move on.
I was grateful then, and with hindsight am even more grateful now, for the 2-1/2 years that I worked for Hatch, and I am proud of what we accomplished. Despite the fact that Republicans were in the minority, Hatch himself managed to have surprising influence on Bill Clinton’s Supreme Court nominations—especially on Clinton’s pick of Stephen Breyer. Indeed, Hatch’s influence was so surprising that even the ghostwriter of the relevant part of his autobiography (Square Peg: Confessions of a Citizen Senator) can’t begin to understand it. That ghostwriter instead mistakenly asserts:
At the time [i.e., when Byron White announced his retirement in 1993], I was Chairman of the Senate Judiciary Committee and would play a significant role in the confirmation process. Consequently, it was not a surprise when the President called to talk about the appointment and what he was thinking of doing.
No! Hatch was not chairman of the committee in 1993 or 1994. So it was quite a surprise—and quite a testament to Hatch’s savvy—that Clinton consulted so extensively with him. As liberal Democrat Howard Metzenbaum complained when Clinton nominated Breyer:
[M]y strong feeling is that the president, in his heart maybe, wanted to go with Babbitt but after he talked with Orrin Hatch and indicated there might be some opposition, all public indications are that he then decided to go with Breyer, that being an easier choice. Now I don't know what the president was thinking. I'm not privy to his thinking. I didn't speak with him about the subject. But my feeling is that Bruce Babbitt would have been appointed except for some opposition as indicated by Orrin Hatch…. And in all my experience in the United States Senate, about nineteen years, I don't remember any president checking with somebody in the opposite political party in order to determine or to affect his judgment with respect to deciding who should be appointed to the Supreme Court.
Above all, I’m grateful that I had the opportunity to do my part to help Hatch and other Senate Republicans make compelling cases against the Barkett and Sarokin nominations and to enable them to discover that they could score big political points in fighting against liberal judges.
Other aspects of my work for Hatch were also gratifying—for example, working with him as the Senate Finance Committee defeated key provisions in Clinton’s health-care reform, drafting an amendment that ended up extending important protections to places of religious worship, and—a personal favorite of sorts—meeting with Major League Baseball players during the 1994 strike. (I’m proud to have a baseball signed by Hall of Famers Cal Ripken Jr., Eddie Murray, Dave Winfield, and Jeff Bagwell, as well as by Mark McGwire, Cecil Fielder, Wally Joyner, Bobby Bonilla, and Matt Williams.)
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If you’ll pardon a personal indulgence: My departure from the ranks of Senate staff intersected with the political careers of three other lawyers.
I met John Yoo in the spring of 1995, during his clerkship for Justice Clarence Thomas. I was eager to ensure that Senator Hatch was well staffed for judicial nominations, and I was delighted that I was able to recruit someone as brilliant and savvy as John to succeed me as general counsel to the committee. (My position as general counsel was subordinate to the positions of chief counsel and staff director.)
Speaking of brilliant and savvy: I was very fortunate that former—and, as it turned out more than two decades later, future—Attorney General Bill Barr, the general counsel of GTE Corporation, hired me as his associate general counsel for regulatory strategy. I worked for Bill for the next six years, through GTE’s merger with Bell Atlantic to form Verizon, before I returned to government service in 2001 as principal deputy in the Office of Legal Counsel in the U.S. Department of Justice.
Right after the November 1994 elections, I met with a colorful young lawyer from New York City who was bored with private practice. She sought my advice on whether it would be worthwhile to work as a Senate staffer. I encouraged her to give it a try—who knows what it might lead to?—and I found her in early 1995 working for Spence Abraham. So while I won’t take any credit for the remarkable (and of course controversial) career of Ann Coulter, I can say that I was present at the beginning and gave it a nudge.
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