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Bob Dole Puts Judges At Center Of 1996 Presidential Campaign
And Bill Clinton undermines senatorial deference
In his 1996 presidential campaign, Republican candidate Bob Dole made judicial nominations a major issue. While Bill Clinton easily won re-election, he did so in spite of, not because of, his judicial nominations. The campaign deepened the divide between the parties on judicial philosophy. And Clinton’s triangulating response to Dole severely undermined the model of senatorial deference that had so benefited him.
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As we have seen, in the midst of the intense controversy over Judge Harold Baer Jr.’s extraordinary drug ruling, Bob Dole highlighted that the November 1996 election would be a choice “between a candidate who will appoint conservative judges to the court and a candidate who appoints liberal judges who bend the laws to let drug dealers free.”
One month later, on April 19, 1996, Dole gave his first major speech as the presumptive Republican nominee. Speaking to the Society of Newspaper Editors—not the most receptive audience for his message—Dole dedicated the bulk of his speech to the theme that he and Clinton “fundamentally differ” on the “kind of judges we will appoint to the federal bench”:
I will appoint justices to the Supreme Court who know how to read and respect the clear language of the Constitution as it is written — as it is written — and don't search to find rationalizations for their liberal agenda in so-called emanations and penumbras never intended or imagined by our founding fathers.
I will appoint judges who respect the rule of law, who understand society is not to blame for crime, criminals are — judges who protect the rights of crime victims, not invent ever newer and more expansive rights for criminal defendants….
And Dole judges will hand down strict sentences to criminals in order to protect law-abiding citizens from further violence and harm. And I find it shameful that law-abiding Americans are often locked behind bars — go to any city in America — the security bars on the windows of their homes, while criminals are left free to roam the streets.
Dole faulted Clinton for appointing Justice Ginsburg and Justice Breyer:
His appointees to the Supreme Court have been among the most willing to use technicalities to overturn death sentences for brutal murders. They frequently vote to grant last-minute stays of execution, even when the death row inmates claims are plainly frivolous.
But he reserved his most extensive criticism for Clinton’s lower-court picks, “a startling number of [whom] have demonstrated an outright hostility to law enforcement.”
Dole presented Baer, federal district judge Leonie Brinkema, Eleventh Circuit judge Rosemary Barkett, and Third Circuit judge Lee Sarokin as charter members of “Bill Clinton’s judicial hall of shame,” “an all-star team of liberal leniency, judges who seem intent on dismantling the rule of law from the bench.” He asked whether “our society can afford to keep in office someone who consistently appoints such liberal judges to the federal bench,” and he warned that with one more Supreme Court appointment Clinton could “lock in liberal judicial activism for the next generation.”
Dole denounced racial preferences as “state-mandated discrimination”:
The judges I appoint will also share the American people and the Constitution's vision of a color-blind society free of discrimination. We are a nation built on the principle of individual rights and responsibilities, and laws that divide our citizens by race or group strike at the heart of what America is all about.
After 30 years of liberal experimentation, America knows that state-mandated discrimination caused only bitterness and division, and undermines the foundation of fairness on which any society must be built.
Dole also described the American Bar Association as a “blatantly partisan liberal advocacy group” and called for it to lose its privileged position in reviewing judicial candidates.
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Dole’s speech earned front-page coverage in the New York Times and prominent coverage as well (at least three articles) in the Washington Post.
Aware (as the Washington Post put it) of the “potential resonance” of the judges issue, the White House responded promptly. In the midst of a trip to Russia, Clinton rebutted Dole by stating that Dole “voted for 98 percent of the judges that I appointed.” (Clinton also invoked the ABA’s high ratings of his nominees.) White House counsel Jack Quinn offered the same rejoinder, as did unnamed “White House officials,” who “pointed out” to the Post that Dole “had supported all but three* of Clinton’s 185 nominees to the federal bench, as well as his two nominees to the Supreme Court, Justices Ruth Bader Ginsburg and Stephen G. Breyer.”
The White House rebuttal was factually accurate. But, as Dole explained, he was according extensive deference to the president’s picks. He was not hinging his vote on whether the nominee was someone he would have selected. Nor was he looking for every opportunity to register dissatisfaction with a nominee. On the contrary, while any single senator could have prevented the unanimous consent that was needed to dispense with a roll-call vote, Dole and every other Republican senator allowed voice votes rather than recorded roll-call votes on all but two of Clinton’s lower-court nominees in his first term. (The two exceptions were Barkett and Sarokin, whom Dole voted against. The third nominee whom he opposed was Fifth Circuit nominee James L. Dennis. Dole voted in support of a motion to recommit Dennis’s nomination to the Judiciary Committee. Immediately after that motion failed by a 54-46 vote—with seven Republicans voting against it—Dennis’s nomination was confirmed by voice vote.)
Every president wants senators to give him a lot of deference on his judicial nominees, all the more so when the Senate is in the control of the opposing party. There is plenty of room to debate how much deference has in fact been provided at various times and how much should be. But any claim by the president for deference from opposite-party senators presupposes that the president will accept accountability for his judicial picks.
In deploying Dole’s deference against him for political advantage, the Clinton White House was telling Republican senators that it would stick them with a share of the blame for Clinton’s bad picks. In doing so, it was jeopardizing the deference that it needed to get its nominees confirmed.
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Three days after his speech, Dole called on Clinton to withdraw his nomination of Bud Stack to an Eleventh Circuit seat. Stack’s primary qualification was that he had raised lots of money for Clinton in 1992 as finance chairman of his Florida campaign. But (as John Yoo recounted in my interview with him) Stack’s confirmation hearing showed him to be woefully ill-informed. Two weeks after Dole’s request, Stack asked Clinton to withdraw his nomination.
In June, Judge Sarokin informed Clinton that he would retire from the Third Circuit after less than two years on that court. In his letter to Clinton, Sarokin complained that he had been targeted for public criticism for “protecting the constitutional rights of persons accused of crimes,” and he stated his concern that his decisions would be used against Clinton.
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The candidates’ acceptance speeches at the nominating conventions in August 1996 provide a stark contrast on how the topic of judicial nominations played with party activists.
Dole was blunt and forceful and was repeatedly interrupted with applause:
I have been asked if I have a litmus tests for judges. I do.
My litmus test for judges is that they be intolerant of outrage; that their passion is not to amend, but to interpret the Constitution; that they are restrained in regard to those who live within the law, and strict with those who break it.
And for those who say that I should not make President Clinton's liberal judicial appointments an issue in this campaign, I have a simple response. I have heard your argument. The motion is denied.
I save my respect for the Constitution, not for those who would ignore it, violate it or replace it with conceptions of their own fancy.
Two weeks later, Clinton in his acceptance speech reviewed what he saw as his achievements during his first term but made no mention at all of Ginsburg or Breyer or his lower-court appointments. He surely feared that the left wing of his party, overrepresented at the convention, would not respond well to any mention of Breyer and, conversely, that the viewing public might be reminded of Dole’s crime-related criticisms of his appointees.
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Clinton defeated Dole handily in November, winning 379 electoral votes to Dole’s 159 and receiving 49.2% of the popular vote to Dole’s 40.7%. (Ross Perot won 8.4% of the votes.)
But Republicans retained control of both Houses of Congress. In the Senate races, Republicans won a net two seats to expand their majority to 55 seats.
One of the seats that flipped from Democrat to Republican was in Alabama, where state attorney general Jeff Sessions won the seat vacated by Howell Heflin. A decade earlier, Sessions had been nominated by Ronald Reagan to be a federal district judge in Alabama, but his nomination had been defeated in the Judiciary Committee, with Heflin casting the decisive vote against him. Sessions would very soon become a new member of that same committee.
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