One of the more effective rhetorical arguments the Republicans are making, is that they confirmed Ruth Bader Ginsberg 96-3, even though she was affiliated with the ACLU. Therefore, the reasoning goes, the Democrats should be willing to confirm a very conservative judge, so long as he is well qualified and doesn’t have any ethical problems.
On the surface of it, this argument is pretty solid. But it is highly misleading.
To begin with, Ruth Bader Ginsberg was not Clinton’s first choice. Clinton chose Ginsberg, at least in large measure, to avoid a nasty confirmation fight.
Here is an account from Orrin Hatch’s autobiography:
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.
In the case of Samuel Alito, President Bush did not confer with Patrick Leahy prior to making the nomination. If he had, there is no doubt that Leahy would have tried to dissuade him from selecting someone so conservative. If Leahy had offered an alternative jurist that he found acceptable, and if Bush had taken his suggestion, then it is quite possible that that nominee would be confirmed with 90-something votes.
Another important difference between Alito and Ginsberg has less to do with the nominees than with changes on the Supreme Court. In the past, the court strove to acheive unanimous decisions (or at least large majority decisions). In more recent times the court has been unable to achieve this, and has decided an unusually high percentage of cases 5-4. The justice Alito has been nominated to replace, Sandra Day O’Connor, has been the deciding vote on many of those cases.
So, unlike Ginsberg, Alito would enter a court where he would wield unsual power. Many cases would be decided differently from how the present court decided them.
Put simply, there is a lot more at stake in the Alito hearings than there was in the Ginsberg hearings. It isn’t personal, it’s strictly judicial.
So, when Lindsay Graham decries the partisanship of the hearings and laments the fact that Alito is unlikely to get anywhere near 90 votes, I can sympathize with his argument to a point. But, he is also being disingenuous. Ginsberg was Orrin Hatch’s suggestion. He did not have to suck up the fact that she worked for the ACLU and hold his nose to vote for her. He recommended her.
