A Judge Becomes a Verb

Those who want political judges should reflect that the political and social preferences of judges have changed greatly over our history and will no doubt do so again. We have known judicial activism of the Right and of the Left; neither is legitimate. – Judge Robert Bork

Editor’s Note: Here in two parts, we are excerpting Orrin Hatch’s lively, personal, sometimes troubling, often insightful discussion of what has happened to the judicial confirmation process from his new book Square Peg. It is timely, since the National Right to Life is reporting how pro-abortion groups are urging senators to filibuster to block the confirmation of Miguel Estrada, President Bush’s nominee to the U.S. Court of Appeals for the District of Columbia, generally considered to be second in importance only to the Supreme Court. Hatch says the process of confirming judges has dissipated as we have slouched into approving judges based on their ideologies, rather than their qualifications.

 


No one can even agree when the rancor over judicial nominations started. Republicans and Democrats point with equal indignation to completely different episodes. I’m sure that if you went back to the early 1800s, you could find reports that the Federalist Party was unfairly blocking President Jefferson’s nominees. Senate confirmation of a presidential nominee is, after all, a political exercise and always has been.

Nonetheless, the blocking and disparaging of nominees, and judicial nominees in particular, is conducted with a frequency and an anger today that would surprise even the most hardened political partisans of the past. The confirmation process has devolved from a constitutionally mandated responsibility to provide “advice and consent” into a political gauntlet that even the most saintly would find terrifying.

To serve in a senior position in the executive branch or to be placed on the federal bench, nominees must risk exposing themselves to a modern-day witch hunt in which no mistake is petty enough to be excused, no past oral or written statement sufficiently ancient to be ignored, and no personal fact or family issue too private to be exposed.

Worse, this trial is often conducted through the press, where anonymous sources secrete a constant venom of rumor, innuendo and falsehood. Confirmation can take months, even years. Nominees are forced to put their careers on hold indefinitely, knowing that at any moment their reputations may be permanently tarnished. It is an absolute wonder anyone is willing to serve.

Approving nominees is a responsibility peculiar to the United States Senate.

In my experience, the over politicization of the nomination process began or at least became greatly aggravated during the Reagan years, when a conservative Republican president was elected by a landslide, giving him a mandate for change. Moreover, the Republicans were given control of the Senate for the first time in twenty-six years, creating an alignment that had never occurred under Nixon and Ford.

It was a terrifying and liberating moment for Senate Democrats. They would no longer be able to dictate the Senate agenda, conduct oversight hearings, and ensure that the issues they considered important were given prime time. Conversely, being in the minority, they were no longer responsible for managing and passing the array of bills such as appropriations legislation, that must move through Congress every year. As one Democratic operative observed, they could “just sit back, pick their targets, and throw hand grenades.” And there were no easier picking than presidential nominees.

Every president must appoint literally thousands of people to run the administration. These positions range from cabinet positions such as the Secretary of state or the Secretary of Defense, to thousands of low-level political appointees spread over the federal agencies and departments. Approximately half of these need Senate confirmation. In addition, presidents have the authority to nominate candidates to fill all vacancies in the 760-person federal judiciary, as well as countless commissioners and similar positions at a wide variety of independent agencies and commissions.

The Democrats quickly realized that one of the more effective ways to impede the Reagan Administration was simply to block or delay the confirmation of those nominated by the president. No one was immune. Over time, cabinet officers, assistant secretaries, even low-level agency appointments, all became political fodder. As long as a person needed senate confirmation, a price could be extracted for a vote.

So there were bitter fights over nominations for positions such as the Assistant Secretary of Labor for Mine Safety and Health and the Occupational Safety and Health Act Review Commission. A nominee for Solicitor of Labor was held up for months by a Democratic senator on the Labor Committee, who was trying to pressure the Reagan Administration to agree to several bills in exchange for his confirmation. Commissioners of federal regulatory agencies, subcabinet positions, ambassadors and even U.S. attorneys all have become pawns in various legislative games.

Instead of abating at the end of the second Reagan term, the tactic became the norm. Today, votes on nominees are often traded like commodities-ten judges in exchange for a vote on this, two commissioners for a vote on that. This objectionable practice is so common and accepted that it has become as important in keeping the Senate functioning as unanimous consent and other key parliamentary rules.

Nonetheless, the cost to the Senate has been great, and nowhere has the damage been more evident than in the treatment of judicial nominations. Rarely does a day go by without one side accusing the other of partisan delays, procedural abuse and other ignominious tactics in considering the president’s selections for the federal bench. The only change is who plays the part of the accuser and who is the accused.

During my tenure as Chairman of the Senate Judiciary Committee between 1995 and 2000, it was my responsibility to provide an opportunity for consideration of President Clinton’s nominees. Although I tried to provide an orderly process, I was routinely criticized by the Democrats and the media for delaying confirmations. This never occurred, they claimed when the Republicans controlled the White House and the Democrats ran the Senate.

In fact, in the aggregate, President Clinton had 377 federal judges confirmed during his two terms. President Reagan, the record holder for judicial confirmations, had 382 confirmed. What makes these numbers even more telling is that President Reagan enjoyed six years when his own party controlled the Senate and thus the schedule of the Judiciary Committee. President Clinton’s party controlled the Senate for only two years during his presidency. Put another way, while I was Chairman of the Judiciary Committee, the opposition did virtually as well at confirming Clinton’s nominees as Reagan’s allies did for his.

During the last two years of President George Bush Sr.’s administration, the Democrats controlled the Senate. At the end of that year there were ninety-seven judicial vacancies and fifty-four nominees left hanging without a vote. Six were submitted too late to be considered.


There was no press outcry. There was no steady stream of accusations in the media about political conspiracies or hoary rhetoric about partisanship at its worst.

At the end of President Clinton’s second term, the Republicans were in control of the Senate. There were sixty-seven judicial vacancies and forty-one nominations left unconfirmed. Nine of those selections were submitted so late that they would have been impossible to confirm even if the Senate unanimously supported their candidacies. Several others were properly and fairly having trouble with their background checks, and five were being blocked by the Democrats themselves.

Consequently, at the end of the Clinton Administration there were only thirty-two nominations left unconfirmed. Yet today some of my Democratic colleagues contend that the Republicans blocked an unprecedented number of judicial nominations. They have leveled charges of racism and sexism, and claimed we allowed right-wing conservatism to run amok. Accuracy, of course, has never been a mainstay of political rhetoric.

Ironically, I was also attacked by members of my own party and their supporters on the right for allowing too many Clinton nominees to be confirmed. They knew that I believed that whoever is president deserves fair and prompt treatment of his or her nominees, but this did not appease my Republican critics. Their anger was so pronounced that, in 1997, several conservative senators tried to devise a method for emasculating the committee process and frustrating President Clinton’s ability to appoint judges. Phil Gramm of Texas recommended that a majority of the senators from the states making up a judicial circuit should be able to veto an appellate court nomination to that circuit. Slade Gorton of Washington went even further, proposing that any senator representing a state in a circuit should have the authority to veto any nominee to that court of appeals.

These proposals would have extended to appellate nominees the rarely publicized process currently in use with regard to district court judges. Today, when an individual is nominated to be a district court judge in a particular state, the two senators from that state are sent a blue slip of paper notifying them of the nomination. If either one objects, the Judiciary Committee traditionally will give that objection considerable weight when determining how to proceed. If both object, that nomination is dead no matter how good the nominee might be.

With appellate court nominees, individual senators may be consulted or make recommendations, but the view of any one member will not be dispositive. Presidents, both Republican and Democrat have always jealously guarded their right to appoint appellate court nominees.

I argued vehemently against both Gramm’s and Gorton’s recommendations. Either would drastically change the dynamic between the legislative and executive branches and further increase the gaming of nominees. One of the consequences of a presidential election, I noted is that the winner has the right to appoint nominees to the court and to the thousands of term appointments at federal agencies and departments. This is why judicial selection should be one of the major factors to be taken into account in choosing a president. The Senate’s power of confirmation is not, in my opinion, equal to the president’s power of nomination. To object to every nominee is contrary to the division of responsibilities assigned in the Constitution.

Moreover, there was the issue of comity. If we expected Democrats to respect the choices of Republican presidents, we could hardly do less when the situation was reversed.

Pointing to recent history, I reminded the Republican caucus that while these proposals might seem to make political sense to some-even though I found them absolutely ridiculous-they needed to consider what would happen in the future. There was a very real chance that at some point we would again control the White House but not the Senate. If that occurred, their recommendations would be tantamount to giving the Democrats the ability and opportunity to block every nominee to the federal court of appeals selected by a Republican president.

After considerable debate, I was able to defeat both proposals, but our consideration of the ideas exemplifies how distressed we had become. Moreover, Gramm and Gorton were right in one sense. The confirmation process was dangerously flawed.

Republican anger with the judicial confirmation process can be traced directly to the treatment of William Rehnquist, Robert Bork and Clarence Thomas, all Republican nominees to the Supreme Court.

In 1986, with the retirement of Warren Burger, President Reagan nominated Justice William Rehnquist to be the next Chief Justice of the United States. Although he had been sitting justice since 1972, when he was appointed by Richard Nixon, and had been praised by Justices William Brennan and Thurgood Marshall as the leading intellect on the Court, Rehnquist’s confirmation was anything but smooth. At the time, I nicknamed it “the Rehnquisition.”

His hearings focused less on the specific decisions he had made on the Court than on matters largely unrelated to his judicial temperament or ability. For days, the nominee was boxed around, forced to answer questions that ranged from the substantive to the inexplicable.

For example, he was questioned about a memorandum he had written in the 1940s, when he was a Supreme Court law clerk for Justice Robert Jackson. In the memorandum, he had explained the Court’s horrible but historic position that “separate, but equal” facilities for African Americans were constitutional. Judge Rehnquist answered by explaining that he was summarizing Justice Jackson’s views on the issue, as he was expected to do in his capacity as a clerk.

One would think that the decisions and opinions of a sitting Supreme Court Justice would be a better indication of his beliefs about civil rights than a memorandum he wrote as a clerk four decades past.

Unsuccessful on this line of attack, Senators Kennedy and Metzenbaum tried to shift the focus to restrictive covenants on two pieces of land, one of which Justice Rehnquist currently owned and the other he had owned some years before. These covenants, which preclude the sale of the land to certain races or ethnic groups, can be found in most deeds to older pieces of property. They are a distasteful reminder of our nation’s discriminatory past. They are also illegal and have been found to be unenforceable by the Supreme Court. Most homeowners are unaware that these covenants even exist, because they are included at the time the deed is first written. The few who are aware of their presence often have little interest in paying the legal costs associated with removing them, since they have no legal effect whatsoever.

The deed for Justice Rehnquist’s vacation home in Vermont contained a restrictive covenant precluding sale to Jews. Similarly a property the justice had once owned in Arizona forbade the sale of the land to someone other than a Caucasian. No one asserted that Mr. Rehnquist had requested that these covenants be included in the deeds. No one claimed he even knew about them. In fact, he did not. Nonetheless, the implication was made that he must implicitly agree with their prohibitions, because he had not had them expunged.

Amazingly, this ridiculously contrived issue hung over the nomination until it was discovered that the deed to former President John F.


Kennedy’s home in the elite Washington, D.C. neighborhood of Georgetown also contained a restrictive covenant. Once this awkward fact became public, the issue magically evaporated.

Senator Metzenbaum would continue with this vein of implication in subsequent years. For example, in the late 1980s, he asked Hal Christensen, who was nominated to be the Deputy Attorney General, how many Jews lived in his neighborhood in Salt Lake City. Before Hal could respond, I mumbled loud enough for most of the room to hear, “It’s probably about the same as the number of Mormons who live in your neighborhood, Howard.” Senator Metzenbaum decided to move on to another topic.

The Rehnquist nomination also marked the beginning of another destructive and inflammatory practice. During the confirmation, questions were raised about the nominee’s health and his use of a drug to combat severe back pain. It was agreed that the former head of the National Institute on Drug Abuse would review Rehnquist’s medical records and make a determination. The doctor studied all the relevant documents and reported back to the committee that the justice had no unresolved health problems.

That should have been the end of the matter, but Paul Simon, a Democrat from Illinois, insisted that the doctor’s report be made public. I objected, knowing that its release could have no purpose but to embarrass the nominee. After some debate, the committee decided to keep the report confidential.

So what happened? Someone on the committee went ahead and leaked the doctor’s report to the press. Not surprisingly, the media accounts focused more on the allegations than on the doctor’s conclusions.

It was never determined who did it, nor was there a sincere effort by the Democrats on the committee to find the culprit. These was no effective way for the nominee to fight back. The more he tried to tell his side of the story, the more attention he would draw to the allegations. As my good friend Bud Scruggs often observes, it’s much easier to litter a mountain than to clean up the mess.

Despite the extended campaign to discredit him, Justice Rehnquist was confirmed by the Senate Judiciary Committee by a vote of 13 to 5. After five days of debate on the floor of the Senate, he became the sixteenth Chief Justice of the United States by a vote of 65 to 33.

The treatment of Justice Rehnquist might seem tame in comparison to what would come, but it established an unfortunate precedent. All the tactics that would be employed in the future-the leaking of confidential information, the reliance on innuendo, the magnification of the insignificant-were brought into play.

Tomorrow: In Part 2 of the book excerpt of Square Peg, Senator Hatch describes the distortions and outright lies that decimated Robert Bork’s nomination to the Supreme Court and transformed the confirmation process into a partisan circus.

Reprinted with permission of Basic Books. All rights reserved