The Clinton-Hatch Allusion

Over the last few weeks we have heard many high-profile Democrats imploring the president to consult with members of both parties within the Senate before selecting a nominee to the Supreme Court . They have argued that consultation is the key towards selecting someone who can gain widespread approval and a smooth confirmation process. As evidence of this, they point to the two Supreme Court vacancies that opened up under President Clinton and the amicable consultation process that existed between him and Sen. Orrin Hatch, then the ranking member on the Senate Judiciary Committee.

However I get the sense that the Democrats who are alluding to these consultations don’t exactly remember how they took place, for they were successful not in the fact that a consensus nominee was agreed to, but because Sen. Hatch understood that a president is entitled to considerable personal deference in selecting a nominee. Sen. Hatch counseled President Clinton on the logistics of the confirmation process, not what judicial philosophy his nominee should hold. In fact, Sen. Hatch recommended two judges who would go on to be President Clinton’s two nominees, Stephen Breyer and Ruth Bader Ginsburg, and two of the court’s most liberal justices. I’m sure President Bush would welcome a similar sense of cooperation as well, but no reasonable person expects Sen. Leahy or Kennedy to afford President Bush the same deference that Sen. Hatch afforded President Clinton.

In contrast, as their statements have already indicated, the Democrats seek to influence what type of judicial philosophy the next nominee will hold. In essence they want a veto. If the president’s nominee isn’t a liberal, results-oriented jurist similar to President Clinton’s two nominees than the Democrats are going to inevitably claim they were never consulted or heard. The president should, and already has, opened up a dialogue with Democratic leaders, but those who expect that dialogue to result in any sense of cooperation or bipartisanship are setting themselves up for disappointment.

Hat Tip: Ed Whelan, Paul Mirengoff