The Senate’s Republicans are moving swiftly to consider a series of far-reaching measures designed to bolster their influence in selecting federal judges and to inhibit President Clinton from naming anyone not to their liking.
Under one of several proposals to be considered by the Republicans at a caucus Tuesday, a small number of Republican senators would have the power to block any Clinton administration nominees they thought were not conservative enough or were unsuitable for any other reason.
The proposed change in procedures, drafted by Sen. Phil Gramm of Texas, would for the first time give senators a kind of veto power over nominees to the nation’s 11 regional federal appeals courts, the level just below the Supreme Court.
Traditionally senators are able to exercise authority only over nominees from their home states to a lower level of court, District Courts. District Courts conduct trials, and judges on that level have little ideological leeway, being mostly bound by rulings made by the appellate and Supreme Courts.
The heated battles over whether the courts are too liberal or conservative almost always involve who will get to sit on the appellate and supreme courts because judges on those benches are able to put forward new legal approaches and constitutional interpretations. In recent decades, the nation’s courts have increasingly become a stage on which to decide contentious social issues such as abortion, school choice and the reach of religion into public life.
The effort by Republicans to increase their influence over judicial confirmations is based on the fact that although the White House nominates people for the bench, the Republicans control the Judiciary Committee as well as the Senate floor, both of which must provide a majority to confirm a judge.
“We are trying to get a clearer definition of what the founders meant in the Constitution when they gave the Senate the power to advise and consent on judicial nominations,” Gramm said in an interview.
“Given the importance of the appellate courts and given the clear power given the Senate in the Constitution, we need to define what our policy should be with regard to the degree of influence senators should have on nominees for those courts.”
Each appellate circuit typically encompasses a number of states. Under the Gramm proposal, if the majority of Republican senators from the states covered by a circuit object to a Clinton nominee, the Republican majority on the Judiciary Committee would be obliged to kill the nomination.
For example, the 2nd Circuit U.S. Court of Appeals, which is based in New York City, covers New York, Connecticut and Vermont. Under the Gramm proposal, a nominee to that court could be blocked by either of the Senate’s two Republicans from those states, Alfonse D’Amato of New York or James Jeffords of Vermont.
In addition, the Senate Republicans are also set to consider on Tuesday a separate measure sponsored by Sen. Slade Gorton of Washington that would require the Clinton White House to get advance approval of a nominee’s ideological background.
Under that proposal, the Republicans would flatly refuse to confirm any judicial nominee unless the President consults in advance with the Republicans from the states in that nominee’s circuit.
The possible changes in procedure being considered by Senate Republicans are but one part of a larger Republican offensive to increase the influence of conservatives in who gets to be a federal judge.
In the House, some leading Republicans have talked about impeaching liberal judges who they say have decided cases wrongfully. Sen. Orrin Hatch of Utah, the chairman of the Judiciary Committee, and others have vowed to defeat the nominations of anyone they deem likely to become “an activist judge.”
Hatch has, however, become the man in the middle of the controversy. Under the new proposals, he would lose some authority as chairman of the Judiciary Committee and is likely to oppose them.
One of the underlying factors in the effort to change the rules is a growing discomfort among some conservatives with Hatch. This suspicion is one of the oddest recent political developments in Republican circles, because of the senator’s undisputed solid conservative record.
Yet he recently annoyed fellow Republicans when he co-sponsored a measure with Sen. Edward Kennedy, D-Mass., that would raise cigarette taxes to pay for health insurance for poor children. In addition, he has tried to include a non-partisan element in his role as chairman of the committee that passes on judicial nominees, aware that the Democrats may one day control the chamber again.
Hatch said Friday that he would not comment on any of the proposed changes but added, “I believe that Republicans approach the judicial confirmation process from a fair and principled and apolitical perspective and I am confident that whatever the conference chooses to do, if anything, will reflect those principles.”
But the fact that the proposed changes would reduce Hatch’s influence will probably make it hard for them to gain acceptance. Almost every fellow Republican senator is a chairman of at least a subcommittee and would likely be reluctant to support measures diminishing a chairman’s authority. In addition, personal relations play a large role in internal Senate politics and Hatch is well-liked by his colleagues.
The offensive against judges, which is aimed in part at discouraging the president from naming any notably liberal candidates, comes after a first term in which Clinton generally avoided confirmation fights, preferring largely moderate and safe candidates.
Both liberals and conservatives have been watching to see whether he becomes more daring in his second term.