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.