SENATE COURT WARS

On their way to withholding votes on 60 judicial nominations among a total of 225 nominations by President Clinton, Senate Republicans in 1997 proposed a unique interpretation of their advise-and-consent role. From now on, said Sen. Slade Gorton of Washington, President Clinton must get advance approval from Republicans affected by district court nominations or the Republican caucus would automatically reject the nominee.

No evidence in the nominee’s favor would be considered; no debate would be necessary. There was reason to believe the GOP would carry out such a threat. Republicans at the time were holding up the nomination of Judge Sonia Sotomayor, first appointed by President George H.W. Bush and named by Mr. Clinton to the appeals court. Her nomination was stalled because Republicans feared the president eventually would name Judge Sotomayor to the Supreme Court and the GOP would have difficulty building an argument against the moderate, highly qualified judge.

This 8-year-old snapshot is important for two reasons. First, Democrats currently in the Senate know precedent was ignored then by some of the very Republicans who hold it close to their bosoms now in limiting the Senate’s role for President Bush’s nominations. Democrats are still smarting over those years even as they forget they stuck it to Republicans when they were in the majority, though not to the same extent. Second, a key reason President Clinton didn’t have a worse time with his nominations was the wisdom of Republicans such as Sen. Orrin Hatch of Utah.

It was Sen. Hatch, then chairman of the Judiciary Committee, who talked his party out of the Gorton proposal, helped shepherd the Sotomayor nomination through Congress and understood the necessity of getting judges appointed. He stood between President Clinton and the most conservative wing of his party and kept the appointment process moving – not always well and not without confrontation, but moving.

Those days come to mind again now because of the fight over the replacement for Justice Sandra Day O’Connor. One recent news story has Democratic Sen. Charles Schumer of New York saying the Judiciary Committee should be able to ask a nominee any question it wants. Republican Sen. Jeff Sessions of Alabama responds that asking nominees to prejudge specific issues is highly objectionable.

But Sen. Hatch had the final word in that story, saying, “Any member of the committee can ask whatever they want, no matter how stupid. But I don’t think nominees have to answer certain questions. They don’t have to answer questions about how they are going to vote in the future.”

Disagreement in the Senate is now so certain that Democrats and Republicans will fight over what they should be fighting about. The public is served badly by this. It needs senators who will respect the process, who will put the nation ahead of a political party. It needs senators who will allow committee members to ask any question they want.