Ensuring a Safe Nominee

Presidential nominations face tougher scrutiny whenever the Senate is controlled by the opposition party. Republican president Ronald Reagan faced this reality when he nominated Robert Bork for the Court in 1987. Bork was a controversial nominee under the best of circumstances but when confronted by a Democratic Senate for a vacancy of a centrist swing vote justice (Powell), the nomination process went ballistic. Following that defeat, the Republican presidents (Reagan and subsequently Bush) moved to a "safe" strategy, seeking nominees with very sparse written records and whose background and professional careers revealed little about where they stood on key legal issues of the day. Bork's extensive writings had provided too much grist for opposition mills.

With a Democratic advantage of 12 seats in the Senate for his first two years in office, President Clinton could presumably feel more confident about naming a nominee. However, the Clinton administration had a rough start. The president seemed to move from one controversy to another, never gaining strong ratings in the public opinion polls. For whatever reason, Clinton felt the need for a safe nominee to the point that the names of potential nominees were often run up the flagpole to see who saluted. Nearly unprecedented communication between the White House and members of the Judiciary Committee transpired, if only through the media, in an effort to produce a nominee who would be assured of confirmation. Ruth Ginsburg's nomination was not unanimous (three Nays), but it was not controversial.

In nominating Stephen Breyer to the Court in 1994, Clinton abandoned his preferred choice, Interior Secretary Bruce Babbitt, because Babbitt's anticipated nomination produced public opposition from key western Republican Judiciary Committee members Hatch and Simpson. They promised to garner bipartisan western opposition based on Babbitt's unpopular stance on increasing grazing fees paid by ranchers on government lands. Despite the fact that Babbitt would likely have gained a fairly easy confirmation, the president opted for the nominee who was assured of strong bipartisan support from the Judiciary Committee. Breyer had served as chief counsel to the Committee when it was chaired by Senator Kennedy and when Hatch, Simpson, and other senior Republicans were in their early years of service. He had impressed them then, and the opportunity now to replace the most liberal member of the Court, Blackmun, with the more moderate Breyer rather than the more liberal Babbitt, set well with all but 9 Republicans who voted against confirmation.

The Clinton administration framed their decision to avoid controversy in a Supreme Court nomination by suggesting that the president was giving life to the "advice" portion of the constitutional clause requiring the president to seek the "advice and consent of the Senate" in making nominations. The effect of avoiding controversy, however, is to empower one's opposition. There is little doubt that Bruce Babbitt could have been confirmed by the Senate, but those who opposed him sensed that by threatening a battle over his nomination they could prevent it from happening, which was exactly the case. In such instances, presidents may wish to consider the advantages of taking on a battle they are nearly certain to win with the consequences of avoiding a battle altogether.

George Watson and John Stookey, Shaping America; The Politics of Supreme Court Appointments, Addison Wesley, 1995, pp. 62–64