Prepare For Turbulence Ahead

Wrapping up the Clinton years

In my few dozen Confirmation Tales posts so far, I’ve focused on Bill Clinton’s judicial nominations. I’ve done so for two reasons.

First, my own direct experience in judicial confirmations began with my work as a Senate Judiciary Committee lawyer for Orrin Hatch in the early Clinton years, and I’ve drawn heavily on that experience for some inside stories that readers have found interesting. (My most-read posts are Ruth Bader Ginsburg’s “Inexorable Zero” of Black Employees and The Supreme Court Nominee Who Would Abolish Mother’s Day, and #4 is Joe Biden Embarrasses Elena Kagan (and I Console Her).)

Second, a sound understanding of practices and developments during those years is essential to appreciating what has happened in the decades since then.

As I get ready to move into George W. Bush’s judicial nominations, I am going to synthesize and distill the Clinton-era practices and developments.

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When Clinton nominated Ruth Bader Ginsburg and Stephen Breyer to Supreme Court vacancies in 1993 and 1994, Senate Republicans remained wedded to what I have called the “deference” approach. That is, they ignored or demoted considerations of judicial philosophy, including their expectations of how Ginsburg and Breyer would vote on hot-button issues, and they instead primarily addressed whether Ginsburg and Breyer met some suitable standard of intellect, character, and experience. The end result was that Republicans voted overwhelmingly for both Ginsburg (only three of 44 Republicans voted against) and Breyer (nine no votes).

Republican senators might well have trumpeted the deference model as a matter of political strategy during the years that Republican presidents were submitting Supreme Court nominations to Senates with Democratic majorities. But it’s remarkable that they continued to invoke deference even after Democratic senators had abandoned the approach, 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.) As I explain more fully in this post, many Republican senators would sensibly have calculated that deference to Clinton’s Supreme Court nominees promoted their strong self-interest in getting re-elected.

An alternative theory is that Republicans deferred to Clinton on the Ginsburg and Breyer nominations because Clinton consulted with Hatch (and, to a much lesser extent, with some other Republican senators) before making those nominations. But that has things backwards: Clinton consulted with Hatch precisely because Hatch made clear from the outset that he was committed to the deference model—that he would not draw an ideological line in the sand but would instead simply help Clinton avoid an unnecessary fight. 

Deference was still possible because the confirmation process could be very much kept an inside game. In the pre-Internet age, aspects of a nominee’s record that might be very controversial or embarrassing could be bottled up. Ruth Bader Ginsburg would probably never have been nominated, and her confirmation would surely have been much more contentious, if her 1974 article that set forth these explosive propositions had been widely known:

“Replacing ‘Mother’s Day’ and ‘Father’s Day’ with a ‘Parents’ Day’ should be considered, as an observance more consistent with a policy of minimizing traditional sex-based differences in parental roles.” [p. 133]

“Prostitution, as a consensual act between adults, is arguably within the zone of privacy protected by recent constitutional decisions.” [p. 72]

A statutory restriction on political rights of bigamists “is of questionable constitutionality since it appears to encroach impermissibly upon private relationships.” [pp. 190–191]

“Sex-segregated adult or juvenile institutions are obviously separate and in a variety of ways, unequal.... If the grand design of such institutions is to prepare inmates for return to the community as persons equipped to benefit from and contribute to civil society, then perpetuation of single-sex institutions should be rejected…. While the personal privacy principle permits maintenance of separate sleeping and bathing facilities, no other facilities, e.g., work, school, cafeteria, should be maintained for one sex only…. [G]ender should not be a relevant factor in determining institutional assignments [for prisoners].” [p. 75]

“The Boy Scouts and the Girl Scouts, while ostensibly providing ‘separate but equal’ benefits to both sexes, perpetuate stereotyped sex roles to the extent that they carry out congressionally-mandated purposes.” [p. 131]

And Senator Hatch, in today’s social-media world, never would have dared to try to provide Ginsburg cover for the glaring gap between her own employment record—zero black employees among her 57 hires—and her evident willingness to resort to flimsy statistical disparities to infer racial discrimination on the part of other employers.

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Senate Republicans also applied broad deference to Clinton’s lower-court nominations during the first two years of his presidency. In 1993 and 1994, the Senate confirmed 19 appellate judges and 107 district judges, and all but two were confirmed by voice vote. The vast majority of these judges were confirmed very speedily, and Republican senators appear to have made only modest use of their blue-slip privilege on home-state nominees.

The two confirmation battles that we waged in those two years—against Eleventh Circuit nominee Rosemary Barkett and Third Circuit nominee Lee Sarokin—provided, I would submit, stellar examples of how opposition should be carried out. In each case, Senator Hatch submitted in the Congressional Record a detailed account (prepared by yours truly) of what we found objectionable in the nominee’s record. (I invite you to read our three long memos on Barkett and our extensive memo on Sarokin.) As I’ve noted, a Biden staffer graciously told me that they couldn’t find any errors in our Barkett memos, and Senator Bill Bradley personally thanked me on the Senate floor for how we had carried out our case against Sarokin, his longtime friend.

The opposition to both Barkett and Sarokin ended up being bipartisan: Robert Byrd, the Senate Democratic leader during the Reagan and Bush 41 presidencies, joined 36 Republicans in voting against Barkett. With the 1994 elections one month away, six Democrats ended up voting against Sarokin. And they weren’t just any six Democrats. In addition to past Democratic leader Byrd, they included majority whip Wendell Ford, future Democratic leader Harry Reid, and, perhaps most notably, a liberal three-term senator from Tennessee, Jim Sasser, who envisioned becoming the Senate majority leader in 1995 after winning re-election to a fourth term. Indeed, Sasser was so eager to advertise his opposition to Sarokin that he even voted against cloture.

In the 1994 Senate election campaigns, Republican candidates discovered that they could score big political points in a fight over liberal judges. Political novice Bill Frist criticized Sasser for his support of bad judges and ended up trouncing him in a huge upset, and Republicans won control of the Senate by gaining eight seats.  

Hatch became Judiciary Committee chairman in the new Senate. Even as Clinton abandoned some nominations, the new Republican members of the committee were surprised by how much deference Hatch was still willing to give him. Senate Republicans gradually learned to use their majority muscle. Hatch had to navigate against the pressure from his right for the remainder of Clinton’s presidency.

The 1996 presidential campaign deepened the divide between the parties on judicial philosophy. Republican candidate, and Senate majority leader, Bob Dole put judges at the center of his campaign. Clinton was so scared of his vulnerability on judges that he brazenly pressured one of his own appointees to reverse a ruling in favor of a criminal defendant. More momentously, Clinton undermined the practice of senatorial deference that benefited him, as he responded to Dole’s criticisms by pointing out that Dole had voted for nearly all of his nominees. By telling Republican senators that he would stick them with a share of the blame for his bad picks, Clinton jeopardized the deference that he needed to get his nominees confirmed.

As the statistics in my last post revealed, Clinton ended up appointing more lower-court judges than Ronald Reagan did, despite the fact that Clinton faced a Republican-controlled Senate for six years. He also succeeded on his promise to appoint women and racial and ethnic minorities. But the Senate under Republican control confirmed a markedly lower percentage of Clinton’s appellate nominees than of his district nominees—and at a much slower pace.

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Buckle your seat belts, as it’s time to move on to judicial nominations during George W. Bush’s presidency.