Swapping judges.

Swapping judges.

Swapping judges.

Gossip, speculation, and scuttlebutt about politics.
June 25 2003 7:00 PM

How To Confirm O'Connor's Replacement

… and end the deadlock on federal judges.

In his 2002 memoir, Square Peg: Confessions of a Citizen Senator, Orrin Hatch explains how Stephen Breyer and Ruth Bader Ginsberg got on the Supreme Court:

In 1993, with the resignation of Justice Byron White, [President Clinton] had the first opportunity for a Democrat president in twenty-six years to nominate someone to the Supreme Court.

At the time, I was Chairman of the Senate Judiciary Committee and would play a significant role in the confirmation process. Consequently, it was not a surprise when the President called to talk about the appointment and what he was thinking of doing.

President Clinton indicated he was leaning toward nominating Bruce Babbitt, his Secretary of the Interior, a name that had been bouncing around in the press. … Clinton asked for my reaction.

I told him that confirmation would not be easy. At least one Democrat would probably vote against Bruce, and there would be a great deal of resistance from the Republican side. … Our conversation moved to other potential candidates. I asked whether he had considered Judge Stephen Breyer of the First Circuit Court of Appeals or Judge Ruth Bader Ginsberg of the District of Columbia Court of Appeals. President Clinton indicated that he had heard Breyer's name but had not thought about Judge Ginsberg.

I indicated I thought they would be confirmed easily.

In writing this, Hatch does not mean to demonstrate that Bill Clinton was an admirably bipartisan president. We know this because just two paragraphs later, Hatch excoriates Clinton for lacking any respect for tradition and the law and for basing all decisions on "immediate political or personal benefit." No, Hatch's purpose is to demonstrate what an indispensably wise fellow Orrin Hatch is. He even inflates his résumé! In 1993, Hatch was ranking member (i.e., the lead Republican) of the Judiciary committee, not chairman. * Hatch's comic self-regard calls to mind an anatomical quip offered by Chatterbox's Slate colleague, William Saletan, when a copy of Square Peg arrived in Slate's Washington office. "I've got a two-word review," Will said.

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But we digress.

Chatterbox came to the Breyer-Ginsberg anecdote by way of David Broder, who cited it in a June 25 column arguing that President Bush should clear his Supreme Court nominations with Senate Democrats. (Rumors are flying that Sandra Day O'Connor is about to announce her retirement. Even if they're false, William Rehnquist and/or John Paul Stevens could well retire this summer.) Echoing a plea by Sen. Patrick Leahy, D-Vt., Broder writes: "The country—and the court itself—would be well served by the selection of a consensus candidate, and consultation is the obvious way to identify one." Hatch's reminiscence demonstrates that there's some precedent for this, and Hatch (who now really is chairman of the Senate Judiciary Committee) has, to his credit, seconded Leahy's suggestion.

But even with Hatch's support and the Clinton precedent, Broder's recommendation is pretty pie-in-the-sky Good Government (or "goo-goo," as the political cognoscenti prefer to say, thereby tagging as infantile any notion that government ought to enhance the common good). Broder, it must be said, tends to be overly squeamish about political combat of any kind, and even Chatterbox at first considered his suggestion fatuous. President Bush isn't exactly the king of comity. Remember when he said that the (then Democratically controlled) Senate was "not interested in the security of the American people," simply because it wanted to preserve civil service protections in the new Homeland Security Department?

Chatterbox changed his mind, though, when he realized that Broder's goo-goo proposal could be paired with a goo-goo proposal of Chatterbox's own. Earlier this month, Chatterbox urged Senate Democrats to endorse a proposal by Senate Majority Leader Bill Frist, R-Tenn., to eliminate the filibuster. (Actually, Frist would eliminate filibusters only for nominees, but really this anti-democratic instrument should be killed for all Senate votes.) The Senate Rules and Administration committee yesterday approved Frist's rule change, but opposition by Senate Democrats (including, if need be, by filibuster!), is certain to prevent the rule change from happening.

That picture could be altered, though, if either the White House or Senate Democrats who are blocking various judicial nominations (and inspired Frist's proposal) agreed to a swap. If the White House clears its next Supreme Court nominee with Pat Leahy, the Senate Democrats will enact a rule change to eliminate the filibuster. This may sound like crude horse-trading, but in fact an explicit bargain would make both sides look good. More important, it would simplify the process of installing federal judges at all levels. Any takers?

* [Correction, June 26, 2003: An earlier version of this item failed to note that Hatch's recollection of being chairman of the Senate Judiciary Committee in 1993 was mistaken. Hatch didn't become chairman until 1995.]