Article published Friday, July 17, 2005, at National Review Online.

Unserious Suggestions: Silly Democratic consultations

By John R. Lott Jr. & Sonya D. Jones

Senate Democrats implore President Bush to consult with them and they have not ruled out the prospect of filibustering a nominee they consider too extreme. Commentators such as Gloria Borger go on to claim that "real consultation [over a Supreme Court nominee] . . . is about honest exchanges with key Democrats to ensure the public gets what it wants . . . ."

Last week Bush was clearly consulting with the Senate over breakfast with Democrats Harry Reid and Pat Leahy as well as Republicans Arlen Specter and Bill Frist. While the press portrays Democrats as being cooperative by offering Bush the names of conservatives who they regard as reasonable and who would meet with their approval, their suggestions were less serious than first meets the eye.

Democrats suggested the names of three sitting judges: Ricardo Hinojosa, Edward Prado, and Sonia Sotomayor. The problem is that in the same breath that the Democrats acknowledge that Bush will appoint a conservative, the Democratic senators may be only ones that might view their suggestions as conservative. The contrast in the helpful advice that Orrin Hatch offered President Clinton in 1993 could not be more stark.

Hatch’s criteria were simple. He suggested liberals who “were highly honest and capable jurists and their confirmation would not embarrass the president.”

Few would deny that either Ruth Bader Ginsberg or Stephen Breyer was a strong liberal. Prior to their nominations, Breyer served as Senator Ted Kennedy's special counsel to the Senate Judiciary Committee and Ginsberg was the general counsel for the ACLU. Their voting records on the Court have only confirmed those beliefs. On issues such as the constitutionality of the death penalty for minors, reliance on foreign law and constitutions for interpreting our own constitution, whether the government can take someone’s property to give to another private party, how the federal government can regulate essentially everything, or abortion, Breyer and Ginsberg have taken consistently liberal positions.

Hatch also didn’t shrink away from suggesting nominees from intellectual heavyweights who could alter the direction of the court. Breyer, a professor at the Harvard Law School, had written widely on regulatory issues. Both Breyer and Ginsburg had been published widely in academic journals, books, and more popular publications. Hatch suggested nominees whom Clinton would regard as strong choices.

While Republicans might accidentally end up with a liberal justice such as John Paul Stevens or David Souter, it is pretty safe to say that a Republican president wouldn’t nominate the general counsel for the ACLU to the nation’s highest court.

Yet, take the Democrats suggestions for Bush. For example, Judge Sonia Sotomayor was a Clinton nominee to the circuit court. Do Democrats really think that Bush would pick a Clinton nominee? How would Clinton and Democrats have reacted if Hatch has suggested he nominate either a Reagan or Bush 41 circuit-court judge to the Supreme Court?

What is more amazing though is how the media has portrayed this process. Only about a sixth of the news stories on Sotomayor even mention her appointment by Clinton.

Another measure is provided by The Almanac of the Federal Judiciary, which surveys courtroom lawyers on the political views of the judges they encounter in their litigation. The survey asks lawyers whether the judge is "liberal," "moderate," "conservative," "libertarian," or "neutral." Given that these are lawyers (a fairly liberal group being surveyed), it is possible what they view as "moderate" might be considered "liberal" to most other Americans. The survey rates Sotomayor as either a "moderate" or "neutral "politically and Ricardo Hinojosa as a "moderate" — no lawyer who argued before them considered either one "conservative." Only Edward Prado is viewed by any of the practicing lawyers as "conservative," and views of him are evenly split between being "conservative" and "neutral."

Nor do the Democrats have much to worry about any of their suggestions being very influential on the Court. Unlike the names offered by Hatch, none of the Democratic suggestions have previously distinguished themselves in past writings. Indeed, none have published a journal article, book, or even an article in a newspaper or magazine.

Given recent statements by Senator Chuck Schumer that indicate the Democrats are plotting to stymie any possible Bush nominee, it is somewhat hard to take Democratic demands seriously. It may have been a dream to think that Democrats would show Bush the same courtesy that Hatch showed Clinton.

— John R. Lott Jr. is a resident scholar at the American Enterprise Institute and Sonya Jones is a law student at Texas Tech University.

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