Posted on 01/23/2004 8:36:44 AM PST by neverdem
The Hatch problem.
President Bush's recess appointment of Judge Charles Pickering to the Fifth Circuit follows a string of other actions that make it clear: When it comes to the judge battle, the gloves are off. Unfortunately, Judiciary Chairman Orrin Hatch hasn't gotten the memo.
Hatch's politeness and charity towards his Democratic colleagues on the Judiciary Committee, often the source of frustration for conservatives in Washington, is now acutely damaging to the struggle to get conservative judges onto the federal bench.
Specifically, Hatch's eagerness to comply with the Democratic witch-hunt — cooked up to draw attention away from embarrassing memos regarding special-interest control over the minority Judiciary staff — could seriously derail the president's effort to restore restraint to the judiciary.
The Senate sergeant-at-arms next week will release a report on the ways Democrats' scheming memos — on how and when to block votes on judges — ended up in the hands of the press. Hatch and Majority Leader Bill Frist ought to act immediately and decisively to make clear that no wrongdoing occurred.
If they do not aggressively move to reverse Hatch's early missteps — made under the duress of bad press from a hostile media — Republican leaders will give a victory to the forces of deception, discouraging the will of Bush's allies and heartening the enemy.
Finally, conservatives in the trenches of the judges fight now wonder aloud whether Hatch's disposition to cooperation is transforming into a strategy of retreat, and why — and what it means.
First, it must be said that the real scandal is not about who got what memos how, but what the memos said. They demonstrated clearly that Judiciary Democrats were the pawns of radical left special interest groups. Miguel Estrada was a target because "he is Latino," and Sixth Circuit judges needed to be delayed to aid the cause of racial discrimination at the University of Michigan (NAACP Legal Defense Fund Director Elaine Jones retired last week).
Second, Hatch's original comments on the matter were not just counterproductive, they were counterfactual, "I was shocked to learn that this may have occurred," Hatch said. "I am mortified that this improper, unethical and simply unacceptable breach of confidential files may have occurred on my watch."
Hatch's and the media's overblown portrayals of how the memos got out makes it sound like someone hacked into a Democratic server and procured confidential documents. In fact, the documents, through an oversight on behalf of the Democrats running the committee after the Jeffords defection, were easily available to all Judiciary staff from either party.
It would be pretty difficult, Republican lawyers privately surmise, to prosecute someone for gaining access to documents by clicking on a folder under "My Network Places." This is exactly what occurred, according to Senate sources familiar with the case.
Republican sources insist, and say they have told Hatch, that they informed Democrats that their files were available to Republican staff unless they put them on their hard drive. Such a warning should satisfy any ethical responsibility the Republican staffers would have.
The widespread misperception of how the documents got out is largely due, unfortunately, to Hatch's off-target reaction. The vigor with which he originally got behind Dick Durbin and the Democrats in launching an investigation is puzzling to some conservatives. Others say it is part of a trend.
No one can question Orrin Hatch's deep desire to get George W. Bush's nominees confirmed. Hatch likely wakes up in the morning thinking about Bush's judges. But increasingly, his tactics are those of appeasement — and Chuck Schumer and Ted Kennedy cannot be appeased.
Hatch, at the pleading of ranking Democrat Pat Leahy, postponed scheduled hearings for Henry Saad, one of the "Michigan Four" being held up by that state's liberal Democrats. When liberal Republican Arlen Specter and moderate Mike DeWine expressed their wariness over the nomination of conservative J. Leon Holmes, Hatch called off the floor vote on Holmes.
The case of Claude Allen probably best demonstrates the contrast between the White House's tactics and Hatch's style. When Maryland's liberal Senators refused to allow votes for any of Bush's Fourth Circuit Court of Appeals nominees from their home state, Bush broke with precedent and put up Virginian Claude Allen for a spot typically held by a Marylander.
Hatch has agreed to negotiate with Democrats on Allen, as well, rather than push ahead.
Giving in on judges and giving credence to bogus charges don't merely imperil the nominees in question, but by demonstrating a pattern of surrender they deflate the activists. It's becoming a saying around Washington about the Judiciary chairman, "don't count on Hatch before he chickens."
In Washington, dozens of conservatives literally make it their full-time jobs to fight for these nominees. How to they drag themselves to work each day when the pilot of the process looks like Neville Chamberlain?
And Hatch and Frist must remember whom they are fighting against. Throwing some bones — or some live flesh — to the wolves named Kennedy and Schumer will not transform them into lap dogs. It will make them hungrier.
Whether it is the recent staff changes or some election-year caution that is driving Hatch this way, his direction needs to be reversed if Bush's efforts to fix the courts are to make headway.
— Timothy P. Carney is a reporter for the Evans-Novak Political Report.
I agree sometimes with Rush (I think Rush said it) that Republicans don't know how to be in charge, whereas Democrats don't know how to be the minority. You'd think 10 years after the Gingrich Revolution, with a majority most of that time in both houses, they'd "get it."
As Republicans and Democrats absorb the significance of last week's election results, a few things are starting to become clear. For one thing, Republicans are finally starting to settle into the idea that they are the majority party in this country. They have not thought so since 1932.
I worked in the Senate in 1980, when Republicans won control there for the first time in almost 30 years, and I remember clearly the sense that this was all just temporary. In contrast to the Democrats, who treated Republicans like dirt, the latter were very deferential. They didn't treat Democrats with the same disdain, because in their hearts they knew it wouldn't last.
The memory of 1946-48 and 1952-54, the last times that Republicans held either house of Congress, were very much in their minds. Although no one ever said so, I think most Republicans in the Senate thought they would probably lose the majority in 1982. Consequently, they were fearful of alienating the Democrats, whom, they thought, would soon be back in power, lest they be punished as a consequence.
This sort of meek attitude toward one's oppressors is, sad to say, not uncommon. People who are kidnapped, such as Patty Hearst, have been known to fall in with their kidnappers. Republicans in Congress had somewhat the same attitude. They were so used to being beaten and abused that they thought this was the normal state of affairs. When they got the majority, some reacted like a caged bird suddenly set free: they simply didn't know what to do.
The Advice and Consent/ Appointments Clauses
Article 2, Section 2, Clauses 2 and 3
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. The Senate Is Supposed to Advise And Consent, Not Obstruct and Delay" & 'Nuclear option' out =The Hill.com= & The Salt Lake Tribune -- GOP plans to use 'nuclear option' to end ... & A broken tradition - The Washington Times: Editorials/OP-ED & Testimony of Mr. Steven Calabresi Professor of Law Northwestern University Law School & Testimony of Dr. John Eastman Professor of Law Chapman University School of Law & Testimony of Mr. Douglas Kmiec Dean of the Columbus School of Law The Catholic University of America
The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.
The United States Senate is the only place on the planet where 59 votes out of 100 cannot pass anything because 41 votes out of 100 can defeat it.
Try explaining that at your local Rotary Club or someone in the Wal-Mart parking lot or, for that matter, to the college freshman in Poly Sci 101. You can't because this silly senate math stands democracy on its head.
James Madison, the Father of the Constitution, feared some future political leaders would pervert the legislative process in just this way. And he warned in Federalist Paper Number 58 that when it happened, "The Fundamental principle of free government would be reversed. It would be no longer the majority that would rule. The power would be transformed to the minority." So what's happening today, I'm sure, has the man who wrote the Constitution spinning in his grave.
And Alexander Hamilton as well, because he agreed with Madison on this. He pointed out in his Federalist Paper #68 that the vice president was given a tie-breaking vote "to securing at all times the possibility of a definite resolution of that body." A "definite resolution, how well put. That's what we need around here: "a definite resolution."
For many years, I taught political science and history at four different colleges and universities, I don't think I ever taught a class without telling the old story about the origin of the Senate.
Thomas Jefferson was in France when the Constitutional Convention was being held and later, the story goes, he asked his friend George Washington, who presided over the convention, about the purpose of this upper chamber, the Senate.
Washington, according to the anecdote, then asked Jefferson "why do you pour coffee into your saucer?" "To cool it," Jefferson replied. And Washington responded, "Even so, we pour legislation into the senatorial saucer to cool it."
But there is nothing said in the Constitution at all about extended debate. Washington, I believe, thought the smaller size, longer and staggered terms, as well as chosen by state legislation, would provide more wisdom, hopefully.
Some constitutional lawyers have argued that any kind of super majority vote is unconstitutional, other than for those five areas specified in the Constitution itself: treaty ratification, impeachment, override of a presidential vote, constitutional amendments and expelling a member of Congress. Nowhere does it say it now should be a super majority on judicial nominations. But that is what we have going on today.
Unfortunately, Judiciary Chairman Orrin Hatch hasn't gotten the memo.
Hatch needs an injection of Viagra - FOR HIS SPINAL CAVITY.
I heard Byron Dorgan, that hack from North Dakota, threaten the Republicans on the floor yesterday when he was bitching about the Omnibus Bill: he was saying something like, "We're only a couple of votes away from being the majority...", implying that if/when he gets to be a committee chairman, he'll really stick it to the minority side. Well. I hope the Republicans can stay in the Majority for the rest of Byron's tenure. Sometimes, I think, that will mean taking a position that might not fully comport with what the devoted base (FREEPers, for instance!) might want. But if they stay with an overall positive message, they ought to build strong support for a generation or more of running the Legislative branch.
I hope so, anyway, as a
Recovering_Democrat,
I know I never want to have my former party in charge of the land again.
Well said. I keep hoping that Chris Cannon will run for the Senate in 2006. I've said as much to his office, but I think Hatch will have to retire. Orrin Hatch is very fair, and thinks that if he treats others fairly, they will return the favor. Sigh. Unfortunately, it isn't true in the Senate most of the time.
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