Senatorial Advice and Impure Motives

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Orin Kerr puts Clinton's consultation with Orrin Hatch about Supreme Court nominees into perspective. Clinton consulted with Hatch out of political necessity, because he wanted to be sure he didn't nominate someone who couldn't be confirmed, and he was worried his first choices wouldn't. If Bush needs to consult with senators for the same reasons Clinton did, I wouldn't call that the best of motives. It's not as if it would be about honoring the senators' advice. It would be a practical necessity. That's not how it's being painted, though. Al Franken was making comments on the air Wednesday about how Bush needs to do this and how Clinton didn't need to be told to do it. I don't see any reason why Bush shouldn't hear out the advice leading senators might have for him, but telling him that he must do this on the grounds that Clinton did isn't exactly the way to motivate it on moral grounds, not given Clinton's own motivations.

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Fact is that Republicans, including the dreadful Hatch, rolled over for Ruth Bader Ginsburg, chief counsel for the [ungody] ACLU. There's the real lesson.

Of course 'ungody' should be ungodly.

What seems to have gone on, as far as I can tell, is that Clinton asked Hatch which potential nominees would get an easier confirmation, and Hatch told him honestly that more political candidates would face opposition from some in the GOP. The ones with judicial records wouldn't face the same kind of opposition.

I don't know why you think that amounts to an endorsement. Hatch seems to be one of those senators with the view that just about everyone had until Bork got Borked. That view is relatively straightforward. You don't vote no on a nominee simply because you don't like their judicial philosophy. He wasn't in the revenge game over Bork and Thomas. He knew that sort of thing was wrong. So he was pointing out which justices might meet some resistance while telling him some of the names that might not get as much. Any reason anyone might have given to oppose Ginsburg, including her ACLU affiliation, would have been thoroughly immoral reasons to vote no, never mind to filibuster. Any look backward toward those events with the mindset that filibustered nominees for ideological reasons seems to me to just as immoral as what Democrats have been using now.

By the way, her upholding of death penalty cases and her criticism of Roe v. Wade prevent her from fitting too easily into the predictable liberal category, even if her votes since coming onto the Supreme Court are almost always in the liberal direction when they involve social issues.

In the days when government worked well and we didn't have vacancies on the federal bench that contribute to delays in civil and criminal trials, all presidents consulted with senators on all judicial appointments.

Bush would be wrong to consult with senators only if his goal is to further cripple the courts and sow dissension.

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