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The Messy Reality of a Republican Senate Majority
Republicans divide over Clinton nominees Garland, Sotomayor, and Massiah-Jackson
From a distance, it’s often tempting to adopt a simplified political-science model in which senators from the same political party operate largely as a cohesive unit and any deviations track neatly along ideological lines. The messy reality is that senators are very independent actors, often with robust egos, who have their own goals, priorities, constituencies, likes and dislikes, ambitions, rivalries, and idiosyncrasies.
As I continue my broadly chronological exploration of how and why the judicial-confirmation process has changed over the past three decades, I offer as illustrations of this messy reality a few episodes from the first years of Bill Clinton’s second presidential term.
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Republicans expanded their Senate majority to 55 seats in the 1996 elections. But that didn’t make Orrin Hatch’s position as chairman of the Senate Judiciary Committee in 1997 any easier. Hatch was in a hotter spot than ever.
Hatch remained committed to giving broad deference to Bill Clinton’s judicial nominees. He strongly believed that the judicial-appointments process worked best when senators gave the president lots of leeway. He didn’t want the judiciary impaired by lots of vacancies. And he knew that any escalation by Republican senators against a Democratic president would be reciprocated at the next opportunity by Democratic senators against a Republican president.
Other Republican senators didn’t reject the concept of deference outright. But many of them—especially among the more recently elected senators—were disinclined to apply it as expansively as Hatch did. Bill Clinton’s presidential campaign in 1996 marked a turning point. In response to Bob Dole’s criticism of his judicial picks, Clinton had defended himself by pointing out that Dole had voted for nearly all of them. If Clinton was going to use Republican senators’ deference as a political weapon against them, then, many senators reasoned, their deference should be much more sparing.
The set of Republican members on the Senate Judiciary Committee had also changed dramatically from a few years before. Republicans had a 10-to-8 edge over Democrats. Of the ten Republicans, five were first elected to the Senate in 1994 and one other in 1996. Both elections raised controversy over Clinton’s judicial nominations. All six of these newer senators—and especially the two newest committee members, John Ashcroft and Jeff Sessions—were much more aggressive on judicial nominations than any of the Republican committee members during Clinton’s first two years as president.
The increase in the Republican majority in the Senate also heightened expectations that Republicans would use that majority effectively.
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In March 1997, D.C. Circuit nominee Merrick Garland became the first judicial nominee up for a confirmation vote in the new Senate. Clinton had nominated Garland to fill Abner Mikva’s seat on the D.C. Circuit 18 months earlier, in the wake of abandoning his controversial plan to nominate Georgetown law professor Peter Edelman to that seat. Nominated at the age of 42, Garland had stellar credentials as well as a commitment to public service. He had walked away from a law-firm partnership to become a federal prosecutor. In 1993, he joined the Clinton administration as a senior official in the Department of Justice’s Criminal Division, and then became a top aide to Deputy Attorney General Jamie Gorelick.
Following his nomination in September 1995, Garland had an uncontroversial confirmation hearing at the end of November, and the Judiciary Committee promptly reported his nomination favorably to the full Senate. But in a precursor to process objections leveled two decades later against his nomination to the Supreme Court nomination, his D.C. Circuit nomination stalled amidst claims by Republican senators that the D.C. Circuit was underworked and didn’t need its twelfth authorized judgeship. A subcommittee hearing on the matter took place in October 1995, with two D.C. Circuit judges testifying on opposite sides of the question. Chief judge Harry Edwards argued in favor of retaining the twelfth seat; Judge Laurence Silberman argued against.
The Senate ended up confirming Garland by a vote of 76 to 23. Republican senators supported the nomination by a margin of 32 to 23. Among those voting no were new Senate majority leader Trent Lott (who had replaced Bob Dole when Dole resigned from the Senate in 1996 in order to pursue his presidential campaign), Republican whip Don Nickles, and five of the ten Republican members of the Judiciary Committee (including Ashcroft and Sessions).
In 2008, Congress would eliminate the D.C. Circuit’s twelfth seat (or, if you prefer the metaphysics, would transfer it to the Ninth Circuit). The seat that was eliminated was that of Harry Edwards, who had taken senior status in November 2005. A second seat—the one that John Roberts vacated when he became Chief Justice in September 2005—also remained empty for the remaining three-plus years of George W. Bush’s term.
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Divisions among Republican senators also occurred when a home-state Republican would throw his support behind a liberal Clinton nominee (just as Connie Mack of Florida had done for Eleventh Circuit nominee Rosemary Barkett in 1993). Two examples—Sonia Sotomayor and Frederica Massiah-Jackson—stand out from the first two years of Clinton’s second term.
In June 1997, Clinton nominated then-district judge Sonia Sotomayor to a seat on the Second Circuit. Savvy Republicans knew that Democrats were priming Sotomayor, who turned just 43 that month, to be the first Hispanic Supreme Court justice. Al D’Amato of New York could well have used his blue-slip privilege to block any action on her nomination, and he could have used the threat of a negative blue slip to deter Clinton from nominating her in the first place. But D’Amato, facing a tough re-election contest, was instead a big backer of Sotomayor.
Indeed, D’Amato had been responsible for Sotomayor’s district-court appointment by George H.W. Bush. Under a deal he had struck with his Democratic counterpart Daniel Patrick Moynihan, the senator who was not of the same party as the president could dictate one of every four district-court nominees in New York. So when Moynihan picked Sotomayor in 1991, D’Amato helped press Bush, against his advisers’ better judgment, to nominate Sotomayor.
In October 1998, the Senate would confirm Sotomayor’s Second Circuit nomination by a vote of 67-29. Hatch and Arlen Specter were the only Judiciary Committee Republicans who voted in favor of Sotomayor.
One month later, D’Amato would lose his re-election bid to Chuck Schumer by more than ten points.
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Frederica Massiah-Jackson fared much less well than Sotomayor. In a deal with Arlen Specter, Clinton nominated state judge Massiah-Jackson to a seat on the Eastern District of Pennsylvania on the same day—July 31, 1997—that he nominated Specter’s friend Bruce Kauffman to another seat on that same court. In return, Specter strongly supported Massiah-Jackson’s nomination. At his urging, three other committee Republicans downplayed concerns that were raised at her hearing about her soft-on-crime record and her judicial temperament. (“Shut your f***ing mouth,” she yelled at one prosecutor.) The committee reported her nomination to the full Senate, by a 12-to-6 vote, just a week after her hearing.
The Senate confirmed Kauffman’s nomination on November 8, 1997. But after Ashcroft and Sessions prevented a similar voice-vote confirmation of Massiah-Jackson’s nomination, the Pennsylvania District Attorneys Association weighed in with (as the New York Times put it) “detailed criticisms of her behavior as a judge on the Court of Common Pleas in Philadelphia”:
She has been accused of belittling injuries suffered by victims, giving lenient sentences and showing sympathy to convicted criminals, even giving short sentences to defendants convicted of rape who committed the crime again.
Perhaps most notably, the Democratic district attorney in Philadelphia, Lynne Abraham, wrote a letter to Specter in which she strongly opposed Massiah-Jackson’s nomination:
My position on this nominee goes well beyond mere differences of opinion, or judicial philosophy. Instead, this nominee's record presents multiple instances of deeply ingrained and pervasive bias against prosecutors and law enforcement officers--and, by extension, an insensitivity to victims of crime. Moreover, the nominee's judicial demeanor and courtroom conduct, in my judgment, undermines respect for the rule of law and, instead, tends to bring the law into disrepute. This nominee's judicial service is replete with instances of demonstrated leniency towards criminals, an adversarial attitude towards police and disrespect toward prosecutors unmatched by any other present or former jurist with whom I am familiar.
The Wall Street Journal weighed in with two house editorials criticizing Specter for his support of Massiah-Jackson.
After a second hearing in March 1998 in which Massiah-Jackson failed to dispel the criticisms, the White House withdrew her nomination.
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As the parties further polarized over judicial nominations, the Senate majority would manage to become more unified against an opposite-party president’s judicial nominees, as Senate Democrats demonstrated in 2007 and 2008 and as Senate Republicans showed in 2015 and especially—to the detriment of Merrick Garland’s nomination to the Supreme Court—in 2016.
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