Back when Republicans owned the White House and Democrats ran the Senate, Orrin Hatch of Utah was the Florence Nightingale of wounded nominees. He called it a "tragedy" that "politics" had entered the judicial-nomination system. Defending Robert Bork, Hatch commented, "When you have a man of this caliber, I think it's just terrible to try and make an ideological battle out of it." When it came to executive-branch appointments, Hatch was adamant that the Senate defer to the president's choices. On this basis, he stood up for William Bradford Reynolds, rejected for the No. 3 job at the Justice Department in 1985; and William Lucas, shot down as head of the civil-rights division in 1989.
Now Hatch is chairman of the Senate Judiciary Committee, and he's the one blocking the president's choices--most recently the nomination of Bill Lann Lee to be assistant attorney general for civil rights. Aware that he is vulnerable to a charge of double standards, Hatch has his defense ready. He says he's not a hypocrite, because the Democrats changed the rules. In a hearing before the recess, Sen. Patrick Leahy, D-Vt., proposed that the committee pass the Lee nomination on to the full Senate without a recommendation, something Hatch had wanted to do for Lucas eight years ago. Hatch responded that sauce for the goose is sauce for the gander. "I argued for reporting the nominations of Brad Reynolds and Bill Lucas without recommendations," he said. "But Sens. Biden, Kennedy, Leahy, and Kohl all voted no."
There's no denying that Democrats changed the rules. As Stephen Carter explains in his book The Confirmation Mess, contested appointments were relatively rare from the 1870s through the 1970s. But around the time Ronald Reagan became president, Democrats rediscovered the more literal, pre-Reconstruction understanding of "advice and consent." (This in itself is ironic: Usually it is Republicans who insist on taking the words of the Constitution literally and Democrats who argue for a broader interpretation.) In 1981, the Democrats forced Ernest Lefever to withdraw as a nominee for assistant secretary of state for human rights because he gave no indication of caring about human rights. (It didn't help matters when family members said Lefever thought blacks were genetically inferior, or when Lefever himself told Sen. Charles Percy that his opponents were part of a Communist conspiracy.) In 1985, the judiciary committee prevented Reynolds from moving up at Justice because of the Reagan administration's position--which Reynolds endorsed--that Bob Jones University, which forbade (and continues to forbid) interracial dating, should be allowed to keep its tax-exempt status. This was followed by the rejection of Bork for the Supreme Court, of John Tower for secretary of defense, and of Lucas. The new Democratic standard was that deference could no longer be expected, at least for jobs involving civil and human rights.
Conservatives contend they're just playing by these rules. "A deeply satisfying and entirely valid reason for rejecting the nomination is pay-back," George Will wrote in a recent column on Lee. Others made the same argument about Lani Guinier, who never even got a hearing for the civil-rights job in 1993; and about Walter Dellinger, who served for several years as "acting" solicitor general because Republicans wouldn't confirm him.
But in fact, the GOP has gone beyond tit for tat. Democrats always conjured up some kind of pretext: Reynolds hadn't enforced the law; Lucas had no background in civil-rights enforcement and hadn't declared some stuff at customs. In Lee's case, however, Hatch says he's opposing a qualified nominee simply to draw the line on an administration position he disagrees with. "I think it's time for us to that are dividing America and ripping us apart," he declared in committee.
Furthermore, Republicans have done away with deference for a whole range of posts that touch upon contentious social issues, not just those involving civil rights. Before the 1996 election, Republicans killed the nomination of Henry Foster to be surgeon general because of his support for legalized abortion. Now they are sitting on the nomination of David Satcher for the same reason. Hatch has also been holding up dozens of nominations for federal judgeships. In these cases, as in Lee's, conservatives have taken the implicit position that if the president's nominee shares the president's views, that is reason enough for rejection.
Nothing can stop the Republicans from changing the rules of the nomination process unilaterally, as the Democrats did in the 1980s. And there's no way to enforce consistency. Conservatives are free to defer to the president on ambassadors and secretaries of Commerce, but not on chairpersons of the NEA and surgeons general, if they so desire. It is also egregiously unfair to charge, as Sen. Barbara Mikulski, D-Md., and others have, that Hatch and his colleagues are guilty of anti-Asian racism because they have chosen to make a fuss in Lee's case and not in others. But ability and good sense are two different things. Hatch's zero-deference stance is a foolish one, even for those who share his politics.
T he first problem with the Hatch standard is that it won't work. If senators take the position that they will not accept presidential nominees who share the president's views on important issues, many jobs will remain perpetually unfilled. In the case of civil-rights enforcement, this might not bother Republicans, many of whom don't believe in the whole concept. But keeping an important post vacant may actually undermine the attempt to change the policy it represents. Civil-rights enforcement can be directed more quietly from another desk. As long as it is, there won't be any point person to answer for administration policies, or to the public. In the case of judicial nominees, there's a more serious problem of justice delayed (which, as we know, is justice denied) due to a shortage of judges.
The second problem is less tangible. The more policy disputes are personified, the more the confirmation process becomes a war of martyrs and dragon slayers, the uglier and more unproductive politics becomes. On top of the many sacrifices public servants already must make--disclosure, lower pay, restrictions on what they can do after they leave--they must increasingly bank on being gratuitously ripped apart by a totally politicized confirmation process. This seems too much to ask. Already, those who aspire to confirmation must express themselves in euphemisms and pretend to have no views.
There's no reason why affirmative action, in particular, needs to be fought out at this sublimated level. In recent decisions, the Supreme Court has both circumscribed preferential policies and made clear that they can be limited or abolished by legislation. If Hatch and his party want to try to proscribe race-conscious policies by democratic means, nobody's stopping them (from trying, that is).
The last issue is practical. Some day, divided government will again be divided the other way. When that happens, Democrats will be bound to escalate the confirmation battle once more, to settle their score with Hatch. And so on, and so on. The game of payback never ends.