After reading one blawger criticize a liberal law professor for playing fast-and-loose with Supreme Court case holdings, I was inspired to share a conservative professor's sleight of hand. A USD law professor wrote:
At the time [Clinton nominated Ruth Bader Ginsburg], no one argued that Clinton was obligated to appoint a candidate who would continue in White's somewhat conservative tradition. And Clinton surely did not do so. He appointed Ruth Bader Ginsburg--a movement liberal who had served for many years as the ACLU's General Counsel. This is approximately equivalent to appointing the former general counsel to the National Right to Life Coalition to the Supreme Court--or perhaps the National Rifle Association. Nobody batted an eye. Somehow the members of the Senate got it in their heads that a President ought to be given substantial discretion in these matters.
Really now? Senator Orrin Hatch would disagree. In his autobiography, he wrote:
[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. Bruce, a well-known western Democrat, had been the governor of Arizona and a candidate for president in 1988. Although he had been a state attorney general back during the 1970s, he was known far more for his activities as a politician than as a jurist. 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. I explained to the President that although he might prevail in the end, he should consider whether he wanted a tough, political battle over his first appointment to the Court.
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 Ginsburg of the District of Columbia Court of Appeals. President Clinton indicated he had heard Breyer’s name but had not thought about Judge Ginsberg.
I indicated I thought they would be confirmed easily. I knew them both and believed that, while liberal, they were highly honest and capable jurists and their confirmation would not embarrass the President. From my perspective, they were far better than the other likely candidates from a liberal Democrat administration.
In the end, the President did not select Secretary Babbitt. Instead, he nominated Judge Ginsburg and Judge Breyer a year later, when Harry Blackmun retired from the Court. Both were confirmed with relative ease.
Of course, we can quibble over what giving the President "substantial discretion" means. But I'm an old-fashioned guy who thinks law professors ought to tell the whole story when educating the non-lawyer public. The USD professor, in failing to note that Senate Republicans played a major role in the SCOTUS nomination process during Clinton's presidency (indeed, naming the justices), omitted materials facts. This is, at best, poor form. At worst, it's calculated to deceive.
Or, perhaps the good professor did not know the role Senator Hatch played in the nomination of Justices Ginsburg and Breyer. I'm not sure which is worse: willfully omitting material facts, or not knowing the facts.
(Hat tip: L-Cubed)