Our coronavirus coverage is free for the first 24 hours. Find the latest information at Please consider subscribing or donating.

  1. Archive

Dealing fairly with judicial nominees

"I don't want the federal judiciary to become a political football," Sen. Orrin Hatch said. "I think we keep the politics down pretty well."

Hatch, the chairman of the Senate Judiciary Committee, was defending his role in handling President Clinton's judicial nominations. The committee has been much criticized for delay in hearings and votes on nominees, which has left some federal courts with disabling vacancies. Chief Justice William Rehnquist joined in the criticism last December.

But Hatch, in a conversation recently, said nominations were moving through the committee. Without doubt the pace has picked up. Right now there are 79 vacancies on the federal bench. The Judiciary Committee has approved seven nominations for those seats and held hearings on two others. Of the remaining 70 vacancies, Clinton has not made nominations for 43.

"I'm a pretty good senator," Hatch said, "but I've never been able to confirm someone who hasn't been nominated."

The most criticized aspect of the Judiciary Committee's performance since Republicans took control of the Senate in 1995 has been the extended failure to act on a number of nominations. The most extreme case is that of professor. William Fletcher of the University of California Law School at Berkeley, who was nominated to the 9th U.S. Circuit Court of Appeals three years ago this month.

Fletcher's mother, Betty Fletcher, is a 9th Circuit judge _ and some Republicans objected that his appointment violated an 1887 anti-nepotism law. She agreed to take senior status _ formally retired but free to sit when she wishes _ when he was confirmed. But still nothing happened.

"I'm committed to moving Willy Fletcher," Hatch said when we spoke. And things now are moving. The committee has scheduled a second hearing on Fletcher this week, and soon after that it is expected to vote on the nomination.

What in fact has been happening on judicial nominations is not a simple case of a Republican majority in the Senate blocking a Democratic president's choices. Rather, Hatch has used time and political skill to overcome far-right Republicans who wanted to do just that.

Last year ultra-conservatives, led by Sens. Slade Gorton of Washington and Phil Gramm of Texas, moved in the Republican Conference to give Republican senators an effective veto over judicial nominees, binding members of the Judiciary Committee. Hatch persuaded a majority of his colleagues to reject the proposals.

Hatch has not himself voted against a single Clinton nominee, in committee or on the floor, even when more conservative Republicans did. But he played a part in the withdrawal of four nominees who might not have been confirmed, and he has no doubt been a factor in Clinton's favoring centrist lawyers for his judicial choices.

"I'm as strong a proponent of an independent judiciary as there is," Hatch said. "But where I get tough is where judges want to make the law." He said he opposed "activist" judges _ a category that is really in the eye of the beholder. Nowadays it is conservative judges who most often depart from earlier views of the law.

A Republican like Hatch _ one who believes in the system and wants to make it work _ has to deal with extremist colleagues. Sen. Jeff Sessions of Alabama, a member of the Judiciary Committee, has asked judicial nominees, "Are you a member of the American Civil Liberties Union or have you ever been?"

Women nominees seem to be particularly suspect to the far right. Margaret Morrow, a corporate lawyer and former president of the California Bar, waited nearly two years to be confirmed as a federal district judge. She was criticized for being a member of California Women Lawyers.

Right-wing opposition to nominees has been stirred up by an organization called the Judicial Selection Monitoring Project, created by the ultra-conservative Paul Weyrich. Hatch did not mention it, but my guess is that it has been a particular thorn in his side.

In the angry politicized atmosphere of Washington today, Hatch is a rarity: someone who is not angry, who can work with political opponents. He thinks the Senate must scrutinize nominees closely before they become judges, "the closest thing to godhood in our system." But he believes in the courts and their "noble role in preserving our Constitution."

New York Times News Service