Discover more from Ed Whelan’s Confirmation Tales
New Republican Majority Dooms Nominee
And White House counsel Abner Mikva isn't happy with me
As some folks have been slow to recognize or acknowledge, it matters a lot which party controls the Senate. When the filibuster is off the table, as it was during the Clinton years and has been again since Democrats abolished the filibuster for lower-court judges in 2013, a president who has same-party control of the Senate can count on getting his nominees confirmed. Conversely, a president who is facing a Senate controlled by the opposing party faces a much greater challenge. An adverse chairman of the Senate Judiciary Committee can simply refuse to hold a hearing on a nominee he wants to block.
That’s what Senate Judiciary Committee chairman Joe Biden did when President George H.W. Bush nominated John G. Roberts, Jr. to a D.C. Circuit seat in January 1992. In June of that same year, Biden also gave a long Senate floor speech in which he warned Bush not even to make a nomination if a Supreme Court vacancy arose before that year’s presidential election.
So with the new Republican majority in the Senate that resulted from the 1994 elections, a big question going into 1995 was how strong a stand Hatch in particular and Republicans in general would take against Clinton’s judicial nominees.
* * *
In December 1994, the Los Angeles lawyers chapter of the Federalist Society invited me to speak on judicial confirmations in the next Senate. As a virtual unknown, I expected a modest-sized audience. But a few days before the event, I learned from the organizer that supporters of stalled district-court nominee Samuel Paz were purchasing tickets in large quantities and planned to show up en masse at the lunchtime event to signal their support for Paz.
Paz, a solo practitioner who specialized in suing police for abuse, had a very quiet confirmation hearing in late August 1994, on the very day that the Senate went into recess. Democratic senator Herb Kohl tossed him a few softball questions, and that was it. (It’s not evident from the hearing transcript that there were even any Republican senators present for Paz’s testimony.)
So confident was Paz of his imminent confirmation that—as this Los Angeles Times article reports—“he gave up his law practice, sold the Alhambra office building that housed it, attended a weeklong ‘baby judges school’ in Washington and even lined up two law clerks and a secretary.” But in the fall his nomination suddenly “sparked denunciations from five police organizations, a conservative judicial watchdog group and the editorial board of a newspaper on the other side of the country—the Washington Times, a key conservative force in the capital”:
“Time and again Mr. Paz has proven himself not to be a friend of law enforcement or equal rights for all citizens including police officers,” wrote Joe Flannagan, chairman of the Los Angeles chapter of the Peace Officers Research Assn. of California, in a stinging letter to Boxer.
The group, which represents more than 39,000 local law enforcement officers in California and Nevada, accuses Paz of filing too many unjustified lawsuits against police officers who the group says were merely defending themselves in difficult and dangerous situations.
A video showing Paz speaking at a seminar for lawyers on how to sue police officers only incensed them more.
On October 4, 1994—a month before the elections that had Democrats very scared—the Senate Judiciary Committee met to vote to refer Paz’s nomination to the full Senate. That morning, the Washington Times published a house editorial that criticized Paz’s “sanguine interpretation” of the Los Angeles riots in 1992:
Paz was one of those inexplicable liberals (of the Maxine Waters variety) who saw in the Los Angeles riots a protest against political inequality, police brutality, and other forms of injustice. “This is what happens when you allow a large segment of society to be forgotten. Now society is beginning to pay the price,” Mr. Paz told the Los Angeles Times in May 1992.
The Washington Times also faulted Paz for his support of racial and ethnic quotas in police hiring and for his unpersuasive denial of such support.
As the Los Angeles Times reported, “with controversy hanging over Paz’s name and an election in the offing,” Senate Judiciary Committee chairman Joe Biden didn’t push Paz’s nomination through the committee at that October 4 meeting. Democratic senators on the committee didn’t want to take any risks on Paz’s behalf:
Several sources said [Dianne] Feinstein was quite relieved that she did not have to cast a vote on Paz’s nomination during her tense reelection campaign against Republican Mike Huffington, who attacked her vote for a federal judge from Florida who was accused of being soft on crime.
So the Senate returned Paz’s nomination to the White House.
* * *
Midday on December 16, I arrived at a packed hotel ballroom in downtown Los Angeles. Two or three hundred people were in attendance, most of them glowering sullenly at me. To my surprise, Paz and some members of the media were also present.
In my speech, I marched through the parade of follies that the Barkett and Sarokin nominations had presented, and I had some strong negative observations on Clinton’s reported forthcoming nomination of Georgetown law professor Peter Edelman to the D.C. Circuit. Here’s the brief account from the Los Angeles Times article on Paz:
Ed Whelan, who will be general counsel to the Republican majority of the committee, declined to comment on Paz’s chances or those of any other judicial hopeful. But at a meeting of the conservative Los Angeles Lawyers Division of the Federalist Society on Friday, Whelan excoriated several of Clinton’s already confirmed judicial appointments and warned that the Hatch-led committee would fight any nominees it deemed “activist” judges.
“I welcome those clashes,” said Whelan. “We will expose to the American public the addle-brained, soft-on-crime policies of liberal activist judges.”
* * *
Nominees who are in private practice incur the highest costs from delays in their confirmation. If you’re, say, a state judge or a government attorney, your flow of work continues more or less as usual during the confirmation process. But if you’re in private practice, clients will understandably be reluctant to hire you for new matters. The situation is worst for solo practitioners like Paz.
I took no pleasure back then, and take none now, in the costs that the confirmation process inflicted on Paz. I’m glad to be reminded by the Los Angeles Times article that he bore it all well:
“I’m doing quite well economically,” he said. He insists that his limbo is an emotional respite from a usually grueling work pace.
“This is the first vacation I’ve had in 25 years,” said Paz, whose children are 6 and 14. “This is actually a pleasant time to be with my children and spend time studying.”
Alas, one president later, when Senate Democrats launched their filibuster campaign, many other nominees would pay a much higher price.
* * *
When I next saw Hatch, he advised me that new White House counsel Abner Mikva wasn’t happy with my remarks in Los Angeles. “Ab Mikva told me I should scold you,” he said with a wink, “so consider yourself scolded.”
In January 1995, the White House informed Paz that Clinton would not renominate him. Clinton declined to resubmit to the Senate five other district-court nominations that had been returned to him.
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