Hatch's Hypocrisy

If you've been listening to the Republican Senate leadership for the past few months, you've by now gotten the message that every presidential judicial nominee has a fundamental right to an "up or down" vote before the full Senate.

And if you listened to a brief interview Thursday with Senator Orrin Hatch on NPR's All Things Considered, you'd have had to be pretty dense to not pick up on an important qualifier to this fundamental right. That's because Hatch laid it out four times in a four minute interview:

• "What's wrong with having majority supported, bipartisan majority supported people, who come to the floor having a vote up and down? And I think both parties should be bound that once a person reaches the floor they get a vote up and down."
• "I think we should bind both Democrats and Republicans that presidential nominees for the judiciary deserve an up and down vote once they reach the floor."
• "I believe we ought to have the constitutional option which would bind both Democrats and Republicans to treat judicial nominations and to treat Presidents with respect by having a vote up and down once they reach the floor."
• "I'd like to have this resolved so that not only Democrats are bound to give a vote once they hit the floor, up and down, but Republicans are bound too."

Through sheer repetition Hatch made painfully explicit a qualifier which has been implicit but mostly omitted from the Republican side of the debate on the fate of judicial nominees. It is this: a nominee's right to an "up or down"vote before the full Senate does not take effect until that nominee reaches the Senate floor. That is, there is no such right until the nominee's disposition has been determined by the Judiciary Committee and, after that, until floor debate on the nominee has commenced.

Hatch should know. He spent about half of his recently-concluded eight year term as the Republican Judiciary Committee chair blocking Bill Clinton's judicial nominees. In all, Republicans blocked dozens of Clinton's nominees (you most often hear numbers from 60 to 70; 65 seems about right). Contrast that with the ten first term Bush nominees blocked by Democrats.

The difference is that Democrats used the Senate rules to filibuster nominees during floor debate, whereas the Clinton nominees never made it out of committee. Hence Hatch's "once they reach the floor" qualifier. Apparently nominee rights, and the respect accorded to them and to the President who nominated them, do have some limits after all.

How did the Republicans manage to stick it to Clinton so many times? With embarrassing ease. The majority party (even if it is a scant majority) controls the Senate calendar and all the committee chairmanships. There are oh-so-many ways to block a judicial nominee when you control the levers of power in the body that must vote. The easiest way, the one most favored by Republicans, is to never get around to scheduling committee hearings in the first place. The nominee just languishes in limbo, never to be heard of or from again. No committee hearings means no committee vote, which means no floor debate, and therefore no "up or down" vote. So much for the Senate's sacred constitutional obligation to advise and consent.

In many ways the filibuster is more pure, because it gets the debate out into the open for everybody to see.

Hatch could hardly claim the "up or down" right is absolute, because his own prominent record would indict him as a most outrageous hypocrite. But he's a hypocrite nonetheless, as are all Republicans who whine about Democratic filibusters as if there is something unseemly and ultimately different about that tactic compared to the methods employed by Republicans under Clinton.

Now the Republican leadership would like to remove the right of judicial filibuster from the Senate's rules--a dubious move because they would do it via a back-door maneuver invoking precedent of the Senate instead of through the normal rule change process. That would still leave intact the ways the Republicans previously blocked judicial nominees under Clinton. Despite all their pained and indignant rhetoric about nominee rights, apparently, in the end, that's ok.

(In a late-breaking development as I was finishing up this post, word came of a compromise in the Senate put together by a centrist group of seven Republicans and seven Democrats. The compromise agreement would presumably retain the right of judicial filibuster in principle in return for Democrats not filibustering certain nominees already in the pipeline. Without the votes of those centrist Republicans, the Senate leadership will not be able to push through the no-filibuster rule change--at least for now. The tenuous compromise was not supported by the leadership or, as indicated in the interview, by Orrin Hatch.)

Copyright (C) 2005 James Michael Brennan, All Rights Reserved