Ups and Downs

In this New Yorker piece, Mr. Herzberg misleads his readers by claiming that since Harriet Miers did not receive an up or down vote, we can no longer demand that the Senate not filibuster future nominees. The demand for an "up or down" vote, after all, was a demand that a minority of Senators, using Senate procedure, not be able to impose their will on the majority. It had nothing to do with the administration, or the nominee herself, withdrawing the nominee.

Mr. Herzberg also claims that Clinton was only able to get his nominees through the Senate "because his nominees were mild-mannered moderates, and because he consulted Republican senators ahead of time." If Ginsburg (counsel to ACLU) and Breyer (counsel to Ted Kennedy), with their voting records, are "moderates," I don't know who would qualify as a liberal.

Another thing that may have been lost in the history of Clinton's Supreme Court nominees is the fact that neither one of those justices was Clinton's first choice in replacing Justice Byron White. Clinton's first choice was Mario Cuomo and I seriously doubt he consulted Senator Orrin Hatch.

More importantly, as George Stephanopoulos pointed out in his book "All Too Human," the White House consulted w/ Hatch not because they wanted to comply with the advice prong of the "advice and consent" clause of the Constitution but because "Republicans hadn't forgotten the rejection of Robert Bork, and Democrats were reeling from their recent encounters with Zoe Baird, Kimba Wood, and Lani Guinier. Sexy was good, but safe was better. We simply couldn't afford another failed nomination." (p.168)