Senator Hatch’s outstanding NRO essay today on the Senate’s advise-and-consent role powerfully refutes those who attempt to invoke as precedent Clinton’s consultation with Hatch:
In 1993, President Clinton sought my input when considering a replacement for the retiring Justice Byron White. Some senators are today fond of waving my book Square Peg, in which I described cautioning President Clinton that confirming some candidates he was considering, such as then-Interior Secretary Bruce Babbitt, would be difficult. President Clinton instead nominated Ruth Bader Ginsburg, and she was easily confirmed.
President Clinton sought my input without my demanding it because he believed it would help him fulfill his constitutional responsibility for making judicial nominations. He did so not because Senate Republicans threatened filibusters or demanded some kind of veto power over his nominations. We did not try to impose a “consensus” standard or insist that a nominee meet some super-majority “widespread support” threshold.
Instead, President Clinton sought my input because I had established a cooperative relationship with him, because he knew his nominees would be treated fairly. Senators demanding consultation and threatening filibusters today might instead consider taking the same approach. Perhaps earning consultation will work better than demanding it.