Senate Republicans Learn to Use Their Majority Muscle
An interview with John Yoo
When I decided to leave Senate Judiciary Committee staff in the spring of 1995, I managed to help committee chairman Orrin Hatch recruit John Yoo to replace me. John came on board at the beginning of July 1995, just after finishing up a clerkship for Justice Clarence Thomas, and he worked for Hatch for a year before returning to his teaching position at Berkeley law school.
I interviewed John to draw on his experience during that year.
EW: What attracted you to work as a Judiciary Committee staffer for Senator Hatch instead of heading straight back to Berkeley?
JY: I was inspired by the success of the Contract with America and the election of the first Republican Congress since 1954. How could I pass up a chance to work in the first Republican Congress in four decades, one with an agenda that meant we would get things done!
I also wanted to see from the inside how Congress worked. Back then, the law schools and federal courts treated Congress as a black box—things went in, things came out, but what happened in between was anyone’s guess. The little field of statutory interpretation was just gaining prominence; I had written my law-school note on the topic and as a law-review editor had worked on an article by Bill Eskridge (then of Georgetown) on congressional overrides of Supreme Court statutory interpretation decisions. I had clerked for D.C. Circuit judge Larry Silberman, who taught me a great deal about the interaction of the three branches of government given his extensive experience in both the judiciary and the executive. And I thought joining the committee staff could allow me to put my experience clerking at the Supreme Court to good use.
EW: During your time on committee staff, Republican senators seem to have learned to use their collective muscle against Clinton’s judicial nominees.
JY: Definitely, but it took a while. When I arrived, senior Republicans still subscribed to what you have called the deference model. They did not believe it appropriate to vote against a judicial nominee whose legal views were within the “mainstream,” whatever that meant. In the epic battle over Judge Bork’s nomination, they had faulted Democrats for opposing him simply because of disagreements over legal doctrine or theory. I remember Senator Hatch saying that he had to allow nominee A or nominee B out of the committee because they were the liberal equivalent of a Bork or a Scalia—nominees he disagreed with but who he believed were qualified and intelligent and held views within the mainstream.
EW: How and why did things change?
JY: Over the course of my year, Republican senators became more willing to challenge nominees on their judicial ideology. There were various reasons.
The new crop of Republicans, including the four new Republicans on the committee, didn’t think that the deference model was sensible or politically astute. So they pushed to take a more aggressive attitude toward Clinton nominees. They had won their seats, in part, thanks to the ideological cohesiveness of the Contract with America and the American people’s hostility to the liberal excesses of Clinton’s first two years — it makes sense that they would want to build on the momentum of their success by bringing a more ideological agenda to confirmations..
Clinton’s early appointees had already issued some decisions that were lenient on crime, and there was rising concern over crime. Bob Dole, the Senate majority leader, was running for president and was looking for issues that could sharply define his campaign against Clinton and unify the Republican party. He quickly discovered that fighting against liberal judges was a political winner. We worked with Dole’s folks to create a Clinton judicial “hall of shame” that received a lot of attention; sometimes the Wall Street Journal editorial page would follow up on a Hatch speech criticizing one of the Clinton nominees.
There was also a sense among Republicans that the success of their agenda would eventually fall into the hands of the courts. During this time, I recall Republicans pushing forward a crime bill/habeas overhaul, the Defense of Marriage Act, a welfare reform that would allow religious groups to participate in the delivery of benefits, and regulatory reform. All of these would have to survive a judiciary that Clinton was seeding with liberal judges. Republicans were also trying to legislate against partial-birth abortion. The first bill to ban partial-birth abortion was introduced in 1995.
EW: How did Senator Hatch deal with the pushback from more junior Republicans on the committee?
JY: Senator Hatch was very savvy. He wanted to get nominees who met his deference standard through the committee process, but he was happy to give other committee Republicans every opportunity to test them on the way. Once the nominees were reported to the Senate floor, Hatch wasn’t interested in using any political capital to get them through. He especially wasn’t going to use up credits to push through nominees in an environment where Dole was using the nominees to draw sharp distinctions with Clinton as we went into the presidential election cycle. I don’t recall Hatch ever asking a favor from leadership to move a nominee to a floor vote.
The pushback from freshman senators also gave Hatch cover to negotiate with or even slow-walk Clinton. Hatch would consult with the White House, which would sometimes give him advance warning that a nominee was under consideration. Hatch now had leverage now to say, “You might want to pick Merrick Garland rather than someone like Peter Edelman, because I won’t be able to stop Jon Kyl and Fred Thompson from going on the attack.” Or he might say to the White House, “I know you are unhappy with the way Garland is not moving, but I have to give everyone full time for investigation and consideration or my right flank will claim they were jammed and refuse to play ball on nominees.”
Hatch also found plenty of common ground with the freshman senators. He held a great hearing that exposed how biased the American Bar Association’s judicial evaluations were. And of course the committee’s jurisdiction extended far beyond judicial nominations. Hatch made extraordinary efforts on behalf of the Antiterrorism and Effective Death Penalty Act of 1996, which among other things streamlined habeas corpus.
EW: Were there any fissures on the Democratic side that you were able to take advantage of?
JY: Fissure might be too strong a word, but Senate Democrats and the Clinton White House differed on the relative importance of appellate and district-court nominations. Home-state Democratic senators had a strong say in Clinton’s district-court picks, and they didn’t want their patronage opportunities to go to waste. They cared less about appellate nominations, which were more in the domain of the White House and which affected their particular states less directly. So we could sometimes placate Democratic senators by moving district-court nominees ahead at the expense of appellate nominees. Hatch was happy to point the White House to the overall numbers.
EW: One nomination that went down in flames during your tenure was Clinton’s pick of Florida personal-injury lawyer Charles (“Bud”) Stack to fill an Eleventh Circuit seat. As you’ll recall, Stack did not have the usual qualifications for an appellate seat, and he eked out only a “qualified” rating from the ABA. But he did raise a ton of money for Clinton’s 1992 campaign.
JY: Yeah, Bud Stack’s nomination shows that confirmation hearings really can matter. No one expected his nomination to arouse much controversy. Senator Kyl asked Stack what he thought of the Supreme Court’s ruling in Adarand v. Pena, a high-profile case from the previous term on the federal government’s use of racial set-asides in contracts. Stack was completely unfamiliar with the ruling, even after Kyl explained its holding. Kyl turned to me with an astonished look on his face and said, “This guy’s toast.”
Dole slammed Clinton for nominating Stack, and Stack, realizing that he wouldn’t be confirmed, asked Clinton to withdraw his nomination.
EW: There were two Fourth Circuit nominees from North Carolina, James A. Beaty Jr. and A. Rich Leonard, who never had a confirmation hearing. What do you recall about those nominations?
JY: My recollection is that Joe Biden, during Bush 41’s presidency, refused to give a hearing to a Fourth Circuit nominee [Terrence Boyle] who had strong support from Jesse Helms. Helms said that he would use all his senatorial privileges to stop Clinton from filling those seats as tit-for-tat for Biden blocking his nominee. Clinton didn’t help himself by considering, I think, Walter Dellinger for the seat—or at least that was the rumor—because Dellinger had opposed Helms in his last re-election campaign. I think the process was delayed first by Helms fighting on Dellinger. Once Clinton picked his nominees, it turned out that Beaty had rendered some decisions that critics in North Carolina were attacking as pro-criminal defendant. Helms requested that Hatch take no action to move the nominees forward. Hatch felt no need to. Helms, as usual, was unique, but his use of senatorial privilege effectively blocked both seats from being filled.*
EW: So did your year with Senator Hatch meet the very hopeful expectations you had going in?
JY: It was quite an experience! I’m eternally grateful to you for helping me get the job. I always say that it was the best job I ever had in Washington.
* Clinton ultimately shifted one of those North Carolina seats to Virginia and recess-appointed Roger Gregory to it. The other seat didn’t get filled until 2010. More on these in future Confirmation Tales posts.