Signing On With Senator Orrin Hatch

"We're in an election cycle"

In the spring of 1992, as the end of my clerkship with Justice Scalia approached, I gave thought to what job I should pursue next. I had already spent several years in private practice and had no particular desire to return to it right away. Now that I had moved to D.C., I figured that I ought to consider opportunities unique to the nation’s capital—perhaps a position in the George H.W. Bush administration or something on Capitol Hill.  

I soon learned that Orrin Hatch of Utah would be taking over as ranking member (i.e., lead senator in the minority party) on the Senate Judiciary Committee and was looking to hire another lawyer for his staff. I had seen Hatch on television in several Supreme Court confirmation hearings and had found him to be impressive. I also had a strong interest in working on judicial nominations, whether it would be supporting good nominees or exposing and opposing bad ones.

What’s more, on the premise that the key to happiness is low expectations, working in the Senate seemed like a very smart move. I had been very disillusioned by the quality of much of the Supreme Court’s decision-making during my year as a law clerk. But, I assured myself, “I know that the Senate is a cesspool. I can’t possibly be disappointed.” 

I turned out to be half right.  

I should emphasize at the outset that I have a great deal of admiration and gratitude for Senator Hatch, and I was very saddened by his death last spring. Some of what I write about my experience as Hatch’s staffer might initially be mistaken as criticism of him, but, as you will see, the fuller picture displays his strategic savvy and illustrates the competing pressures that senators are under.   

My job with Senator Hatch began in late October 1992, just before the presidential election. I had decided against gambling on a job in the Bush administration, as I was not optimistic that Bush would win re-election. I recall a couple of telltale signs of what might charitably be called an enthusiasm deficit. When I had briefly volunteered at his D.C. campaign headquarters, I was surprised to see that hardly anyone was sporting Bush campaign paraphernalia. Why not? Campaign staffers, I learned, had complained of verbal abuse when they wore Bush pins in public, and the campaign leaders responded to their plight by telling them that they didn’t have to wear the pins. That same fall, one of the most common bumper stickers for Bush read: “Annoy the media. Re-elect President Bush.” Not what I would call an inspiring message likely to persuade undecided voters. 

President George H.W. Bush and Senator Orrin Hatch

In a three-way race with Bush and Ross Perot, Bill Clinton garnered only 43% of the popular vote but nearly 70% of the electoral votes. In addition to Clinton’s victory, Senate Democrats preserved their massive 57-43 lead over Republicans. So fighting on judicial nominations wasn’t going to be easy. 

Some weeks later, Senator Hatch and his chief of staff (who in Hill jargon bore the confusingly modest title of “administrative assistant”) held an all-hands meeting for the dozens of staffers in Hatch’s personal Senate office and on his various committee staffs. At the outset of the meeting, the chief of staff declared: “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.”  

Stunned, I recall thinking: An election cycle?!? We just had an election. And what’s the point of being here if we’re not going to fight against bad policies?   

What “We’re in an election cycle” meant, it turns out, is that Hatch was up for re-election to a fourth Senate term two years later, in 1994. He had won his previous election, in 1988, by a margin of 35 points, and he held what was arguably the safest Republican seat in the Senate. Clinton certainly wasn’t popular in Utah: it was the only state in which he had finished third, with less than 25% of the votes. If Hatch’s chief of staff thought that he shouldn’t do anything that might be controversial, which other Republican senators could be expected to? 

The chief of staff’s perspective highlighted a persistent and inherent tension between the personal office and those of us on Judiciary Committee staff, especially when it came to judicial nominations. The personal office cared first and foremost about the retail politics of keeping constituents happy—answering their phone calls and letters, giving them tours when they visited the Capitol, keeping them from having any reason to be upset with Hatch. We on Judiciary Committee staff were committed to advancing what we understood to be Hatch’s conservative legal vision. 

Hatch himself, I think, saw the tension as constructive and was happy to have it persist, as he was properly confident of his ability to decide in the midst of a particular dispute how best to resolve it.   

Never underestimate how prominent re-election is in the minds of a senator and the senator’s top staffers—whose own positions and potential futures as lobbyists are very much at stake—and how unattractive it is to do anything that might make re-election more difficult. As we shall see, one big reason that the Supreme Court confirmation process has changed over the past three decades is that political forces have dramatically altered how senators assess the relative risks of supporting or opposing a nominee.

In March 1993, a few months after the all-hands meeting, Justice Byron White sent a letter to President Clinton…. [To be continued in next post]