The Right Coast

July 15, 2005
Hold Everything!! Orrin Hatch Has Written an Autobiography!!
By Gail Heriot

Just kidding. Actually, Senator Hatch’s autobiography, entitled "Square Peg: Confessions of a Citizen Senator," was published back in 2002. And judging from the fact that remaindered copies are available on the internet for one cent, I’d say it didn’t sell too well. Indeed, I’d never heard of it until I read about it on a blog earlier this week (and as a former staff member of the Committee on the Judiciary, I have greater reason than most to take note).

Evidently, however, someone thinks that I am morally deficient for not having read it. And this appears to have been written without irony (though perhaps not without the liberal application of alcohol.) The same blogger who drew my attention to the Hatch autobiography in the first place accuses me of a willful "sleight of hand" for concealing facts disclosed in the book (and as far as I can tell no where else). And though he acknowledges that it may be that I had no knowledge of the facts, such a state of ignorance in his view may be "worse" than willful concealment. Apparently, the Hatch autobiography is literally a "must read."

Naturally, that piqued my interest. But neither the library here at USD, Borders, Barnes & Noble nor any other local bookstore my assistant called had it. (The San Diego reading public is evidently morally deficient too.) We finally tracked it down at another university library (happily saving me the one cent plus shipping and handling through

Let’s leave aside the accusation that I either knew or should have known about what’s contained in the Hatch autobiography, because that’s just plain silly. (Why do people insist on casting arguments in such terms?) Let’s look instead to see whether the information offers something new on the topic at issue.

That topic, by the way, is Presidential discretion in the nomination of judges. The blogger is concerned about my recent post comparing Sandra Day O’Connor’s retirement to Byron White’s. In it, I stated:

"At the time [of Byron White’s retirement from the Supreme Court], 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 of the National Right to Life Coalition to the Supreme Court. Or the former general counsel of 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. Go figure."

The blogger contrasts this with a passage in the Hatch autobiography recalling a telephone conversation concerning White’s replacement between Clinton and Hatch, who was then Chairman of the Senate Committee on the Judiciary:

"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 Ginsberg [sic] of the District of Columbia Court of Appeals [sic]. President Clinton indicated he had heard Breyer’s name but had not thought about Judge Ginsberg [sic]."

We all know the rest of the story. Clinton went on to nominate Ginsburg (and later Breyer). The blogger apparently believes the Hatch autobiography proves that the driving force behind these nominations was not Clinton, but the Republican Senator from Utah. As the blogger put it, "in failing to note that Senate Republicans played a major role in the SCOTUS nomination process during Clinton’s presidency (indeed naming the justices)," I "omitted material facts." (Emphasis supplied.)

Well, Democrats can relax if they’re worried that this shows Hatch was naming justices for Clinton. Hatch made no claim that the initial idea for nominating Ginsburg or Breyer came from him. And if he had made such a claim, it would have been demonstrably false. Hatch says the telephone call took place after Bruce Babbitt’s name had been "bouncing around in the press." Judging from the Nexis database, that didn’t occur until June of 1993. According to the newspapers, Ginsburg and Breyer had been on the Clinton Administration’s short list from the beginning. Both names had been repeatedly mentioned as far back as March. Hatch was simply inquiring about names he already knew had been under consideration. It’s no surprise that Clinton would ultimately pick from that list.

Why then might Clinton have coyly replied that he had simply "heard of" Breyer and that he had not "thought of" Ginsburg? Well, it’s always possible that he’s fibbing (or that Hatch is fibbing about the whole conversation), but there is certainly no reason to jump to an ugly conclusion. Clinton the man should not be mixed up with the Clinton Administration. Administration aides may have been working overtime to consider thoroughly the names on the Administration’s short list. That doesn’t mean that Clinton himself was prepared to talk about their merits with Orrin Hatch. Under the circumstances, it would be perfectly appropriate and truthful for Clinton to make the statements Hatch says he made.

Would it have been better if Hatch had been more careful to make it clear that both Ginsburg and Breyer were already under consideration by the Clinton Administration? Well, that’s judgment call for the author. Given that Hatch managed to misspell Ginsburg’s name and mis-name the court on which she sat, it possible that between my blogger friend and me, we have already spent more time thinking about this passage in the book than Hatch himself ever did. In any event, trying to persuade the author of a political autobiography that he should take special care to ensure that his readers don’t overestimate his power and influence is a fool’s errand. The world may just have to be satisfied with the knowledge that the record clearly demonstrates that Hatch was not the first to suggest the names of Ginsburg and Breyer to the Clinton Administration. And it is naive to imagine otherwise.

Does the passage nevertheless prove that I was incorrect to suggest that members of the Senate thought "a President ought to be given substantial discretion" when it comes to judicial appointments? It does show that Hatch thought the some members of the Senate (apparently of both parties) would oppose the nomination of Bruce Babbitt. And although Hatch doesn’t clearly specify why, he leaves the impression that it was because Babbitt was a politician, without judicial or even much legal experience. But "substantial discretion" does not mean "infinite discretion," so the fact that one among many potential Clinton nominees (and a non-traditional one at that) would have faced opposition hardly seems like evidence that a Presdient ought to be put on a short leash.

As for Hatch’s support for Ginsburg, I can’t imagine an example that would better support my point. Hatch acknowledges that Ginsburg is a "liberal." And in case anyone has failed to notice, Hatch is not a liberal and has no reason to hope for liberals on the court. He nevertheless felt obligated to support her nomination, because, as he puts it, she was a "highly honest and capable jurist[]." No doubt he hoped that Democratic senators would the same for a highly honest and capable conservative jurist.