Eminent Domain

There you go again...

Gregory Stanford has once again decided to enlighten us about the Supreme Court. His last foray into this area resulted in the stripping of Clarence Thomas' race. Stanford's eye-roll inducing column about the State of the Union contains this passage...

Take my nomination of Judge Samuel Alito for the U.S. Supreme Court. Coming to my defense, members of my party have argued that Republican senators did not give President Clinton's high court nominees Ruth Bader Ginsburg and Stephen Breyer the grief that Democrats gave Alito.

That argument, I now admit, skips over an inconvenient detail: Clinton consulted Republican leaders beforehand precisely to avoid partisan fighting. In fact, Republican Orrin Hatch volunteered the names of moderates Ginsburg and Breyer.

If you heard a loud thump at about 6:30 this morning, that was me falling off my chair in shock while reading this column. Justices Ginsburg and Breyer are moderates?! Are you kidding me?! After this and his previous shot at Justice Thomas, I can only conclude that Stanford doesn't follow the Court at all. He doesn't read the opinions or track the jurisprudence of the individual Justices. He just reads and spits back whatever highly politicized left wing view of the Court he can find with a Google search. No one who seriously follows the Court could describe Ginsburg and Breyer as moderates.

This whole "Clinton consulted with Hatch" thing has been mentioned with moderate frequency during the Alito confirmation process. The story goes that Clinton personally didn't want Ginsburg or Breyer. He didn't even want to nominate a judge. Clinton wanted to put another politician onto the Court. Personally, I think politicians have no business being on the Court, but that's another post for another time. Secretary of the Interior Bruce Babbitt was the politician who ended up being the first suggested name. Here's what Hatch had to say in his autobiography...

I told him [Clinton] 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 Ginsburg.

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.

Now let's take a look at what George Stephanopoulos said about this topic in his book...

Clinton's choice had to be ratified by the Senate, where Republicans hadn't forgotten the rejection of Robert Bork, and Democrats were reeling from their recent encounters with Zoe Baird, Kimba Wood, and Lani Guinier. Sexy was good, but safe was better. We simply couldn't afford another failed nomination.

As pointed out by Byron York, they came up with a list that included Babbitt, Breyer, Ginsburg, David Tatel, and Jose Cabranes. York writes...

Babbitt was first to go. Contrary to the notion that Hatch shot down Babbitt, Stephanopoulos writes that Babbitt's policies on western issues like grazing fees and mineral rights "had enraged many Senate Republicans and more than a few Democrats, who had accused him of waging a 'war on the West'...Even Babbitt's home-state Democratic senator, Dennis Deconcini, called Clinton to advise against Babbitt." Having a nominee's home-state senator - especially one of the same party - nix a candidate is a very powerful sign, which in many cases would be enough by itself to sink a nomination.

So who is telling the truth here, Clinton or Stephanopoulos? Was Ginsburg always on the White House list or did Hatch pick her? I'm inclined to believe the guy who wasn't indicted for lying under oath.