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Why Orrin Hatch Was Eager to Help Bill Clinton
The electoral appeal of the deference model
As we saw in my previous post, my boss Senator Orrin Hatch was eager to make clear to the White House from the outset that he would not draw an ideological line in the sand over President Clinton’s nominee to fill Justice Byron White’s vacancy. Why?
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A big part of the answer is that Hatch, like so many other Republican senators at the time, was wedded to what I will call the “deference” approach to Supreme Court nominations. Under the deference approach, senators deciding whether to support or oppose a nominee should ignore or demote considerations of judicial philosophy and focus primarily on whether the nominee meets some suitable standard of intellect, character, and experience.
The leading alternative to the deference model makes the nominee’s judicial philosophy (whether stated or perceived) a critical factor in whether a senator votes for or against a nominee.
There are some reasonable arguments of principle that can be made on behalf of the deference model, especially in a legal culture in which the ideological divisions over judicial philosophy are not deep. The best argument, I think, would be rooted in senatorial modesty—in a belief that the president is much better equipped than most senators are to identify outstanding legal jurists. But modesty is not a quality commonly associated with senators.
It’s much more likely that Republican senators defaulted into the deference model, from the Nixon presidency forward, as a matter of political advantage, as Republican presidents made fourteen consecutive Supreme Court nominations.* Democrats controlled the Senate for all but three of those nominations. (The exceptions were for Sandra Day O’Connor in 1981 and for William H. Rehnquist, elevated to Chief Justice, and Antonin Scalia in 1986.) So support from Democratic senators was needed to get those nominees confirmed.
But whatever the strategic advantage of the deference model might have been, Senate Democrats had abandoned the model, first in their defeat of Robert Bork’s nomination in 1987 and then in their opposition to Clarence Thomas’s nomination in 1991. (Even before Anita Hill surfaced, most Democratic senators were expected to vote against Thomas’s confirmation.) So why would Hatch and Senate Republicans invoke deference when Democratic senators had already made clear that they would not reciprocate?
One possible reason is simple inertia. But I would posit that many Republican senators also perceived that deference served their individual electoral interests.
Let me illustrate the point by an admittedly crude model. Assume that a senator’s driving interest is not just in getting re-elected but in getting re-elected easily. As an incumbent, the senator is confident that he will win re-election in an issueless campaign. He is therefore intent on not creating controversies that a future opponent can exploit.
Such a senator won’t want a Supreme Court nomination to become controversial. Controversy means that lots of his constituents will be upset with him no matter what he does, and it may create an issue in his re-election campaign. By invoking the deference approach, a senator acts to preempt any controversy: he seeks to ensure that his own party won’t punish him for his support for the Supreme Court nominee of an opposite-party president, and he aims to win credit from voters of the opposite party and from independents.
The deference model might have been especially appealing to Republican senators in 1993 for two reasons. First, the memorable defeat of Robert Bork’s Supreme Court nomination six years earlier was widely—but I believe mistakenly—thought to illustrate that fighting over judicial philosophy was a political loser for conservatives. Second, the Court’s ruling in June 1992 in Planned Parenthood v. Casey appeared to mark the demise of the conservative legal revolution that Ronald Reagan had inaugurated, as two Reagan appointees (Sandra Day O’Connor and Anthony Kennedy) combined with a George H.W. Bush appointee (David Souter) to botch a historic opportunity to overturn Roe v. Wade. Why fight for a cause that has been lost?
A senator who is committed to the deference model will not view all candidates of the same general judicial philosophy to be equally desirable as nominees. Some candidates might appear to be more extreme than others. In addition, there are factors that are extraneous to judicial philosophy that might make it costly for a senator to vote for a nominee. One obvious factor is poor qualifications for the job. Another factor is whether a candidate is politically toxic to an important part of the senator’s constituency.
What I have said so far addresses why Hatch would not draw an ideological line in the sand. But it doesn’t address why Hatch would be especially eager to highlight that to the White House.
I certainly did not recognize it at the time, but Hatch had the foresight and savvy to discern that even in a very lopsidedly Democratic Senate he might be able to use his status, as the senior Republican on the Judiciary Committee, to influence Clinton’s selection of a Supreme Court nominee. Hatch was strongly opposed to Clinton’s idea of putting on the Court a politician like New York governor Mario Cuomo or former Arizona governor (and then-Secretary of the Interior) Bruce Babbitt. Hatch much preferred sitting judges who had demonstrated at least some understanding that judging is a craft distinct from politics.
As we shall see, in the course of extensive consultations with Clinton, Hatch objected, privately and effectively, to candidates like Cuomo and Babbitt on the ground that their prominent political profiles, and the enemies that they had earned over the years, would make it difficult for him and other Republicans to support them. Clinton wanted to avoid a fight, and Hatch was happy to help him find a good way to do so.
* In my last post, I observed that at the time the White vacancy arose Republican presidents had appointed the previous ten justices. The failed nominations of Clement Haynsworth, Harrold Carswell, and Robert Bork, along with the elevation of William Rehnquist from associate justice to chief justice, account for the difference in the numbers.