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On the November 13 broadcast of NBC News' Meet the Press, host Tim Russert inaccurately claimed that Sen. Joseph R. Biden Jr. (D-DE) had said that Judge Samuel A. Alito Jr., President Bush's nominee to replace retiring Supreme Court Justice Sandra Day O'Connor, "deserves an up-or-down vote." Citing President Clinton's nominations of justices Ruth Bader Ginsburg and Stephen G. Breyer, Russert also misleadingly asserted that Senate Republicans set aside their ideological differences with "those two liberal jurists" in the belief, according to Russert, that Clinton "has a right to put people on the bench who reflect his judicial philosophy."
In his November 13 interview with Democratic National Committee chairman Howard Dean, Russert asked, "Do you believe the Democrats should keep on the table the possibility of a filibuster [of Alito's confirmation]?" When Dean responded, "Absolutely. Of course we should," Russert claimed: "Joe Biden, the Democrat from Delaware, said Judge Alito deserves an up-or-down vote."
But, while Biden did state on the November 6 broadcast of ABC News' This Week that "my instinct is we should commit" to an up-or-down vote and that "the probability is that will happen," Biden noted that he had not yet met Alito and added that the judgment of whether to filibuster "won't be made ... till the bulk of us have had a chance to actually see him and speak to him."
From the November 6 broadcast of ABC News' This Week:
GEORGE STEPHANOPOULOS (host): Senator Biden, let me begin with you. Your friend from Nebraska [Sen. Chuck Hagel (R-NE)] here seemed very impressed with Judge Sam Alito. He basically endorsed him and said Democrats should give Judge Alito an up or down vote for the Supreme Court. Will Democrats commit to giving him that up-or-down vote, or is a filibuster still on the table?
BIDEN: Well, my instinct is we should commit. I have not met him yet. I've contacted people on the 3rd Circuit [Court of Appeals, on which Alito currently sits] -- he's from my home circuit -- who have positive things to say about him. They say he's very conservative. And I think that that judgment won't be made, George, till the bulk of us have had a chance to actually see him and speak to him. But I think the probability is that will happen, but, but I, but I have not spoken to him yet.
In his interview with Dean, Russert also claimed, "Republicans, even though they disagreed philosophically with those two liberal jurists [Ginsburg and Breyer], said the president has nominated them, and we'll support them because he won the election, and he has a right to put people on the bench who reflect his judicial philosophy." Pointing out that Ginsburg had once served as general counsel for the American Civil Liberties Union and that Breyer had worked as chief counsel on Sen. Edward Kennedy's (D-MA) Judiciary Committee staff, Russert asked Dean: "Why shouldn't the Democrats have the same respect for President Bush's appointees?"
But by citing the confirmations of Ginsburg and Breyer as examples of Republican senators setting aside ideological considerations to support the president's nominees "because he won the election," Russert was reviving the so-called Ginsburg precedent. According to this deceptive argument -- hatched shortly after the nomination of Chief Justice John G. Roberts Jr. -- Senate Republicans responded to Ginsburg's 1993 nomination by putting aside their ideological differences, not requiring her to answer questions that would signal how she would decide future cases, and voting overwhelmingly for her confirmation, thereby establishing a precedent for the opposition party's handling of future Supreme Court nominees.
In fact, the Ginsburg and Breyer nominations differ from Alito's in key respects. First, Sen. Orrin Hatch (R-UT) -- then the ranking minority member of the Senate Judiciary Committee -- has claimed credit for recommending both of Clinton's Supreme Court nominees. In his autobiography, Square Peg: Confessions of a Citizen Senator (Basic Books, 2002), Hatch wrote that he had suggested both Ginsburg and Breyer in 1993 after discouraging Clinton from nominating then-Secretary of the Interior Bruce Babbitt to the Supreme Court:
Our conversation moved to other potential candidates. I asked whether he had considered Judge Stephen Breyer of the First Circuit Court of Appeals or Judge Ruth Bader Ginsburg of the District of Columbia Court of Appeals. President Clinton indicated he had heard Breyer's name but had not thought about Judge Ginsberg [sic].
I indicated I thought they would be confirmed easily. I knew them both and believed that, while liberal, they were highly honest and capable jurists and their confirmation would not embarrass the President. From my perspective, they were far better than the other likely candidates from a liberal Democrat administration.
In the end, the President did not select Secretary Babbitt. Instead, he nominated Judge Ginsburg and Judge Breyer a year later, when Harry Blackmun retired from the Court. Both were confirmed with relative ease. (Page 180.)
In her November 15 Washington Post column, Ruth Marcus pointed out that "then-Judge Ginsburg was a consensus choice, pushed by Republicans and accepted by the president in large part because he didn't want to take on a big fight." Contrary to Russert's assertion, Ginsburg had a reputation as a moderate on the U.S. Court of Appeals for the District of Columbia Circuit. As the weblog Daily Howler noted, a June 15, 1993, Washington Post article reported that Ginsburg had "straddled the liberal-conservative divide of the D.C. Court of Appeals for the last 13 years" and that her "pragmatic, non-ideological approach" would most likely put her in league with such "centrist-conservatives" as justices Sandra Day O'Connor and David H. Souter. The Post article cited a study of the 1987 appeals court that found Ginsburg had voted more consistently with Republican-appointed judges than Democrats:
On the D.C. Court of Appeals, to which she was appointed by President Jimmy Carter in 1980, she has become a swing vote. A 1988 computer study by Legal Times newspaper found that she had sided more with Republican-appointed colleagues than Democratic counterparts. In cases that were not unanimous, she voted most often with then-Judge Kenneth W. Starr, who became George Bush's solicitor general, and Laurence H. Silberman, a Reagan appointee still on the court.
And in a footnote in Square Peg, Hatch wrote of Ginsburg: "Not many people realize this, but her voting record at the appellate court was very similar to that of another subsequent Supreme Court Justice, Antonin Scalia." (Page 263.)
Breyer was also frequently described as a "centrist" and a "moderate" during his confirmation process. In a July 8, 1994, New York Times article, Neil A. Lewis wrote:
President Clinton has shown no inclination to try any judicial counter-revolution. He has not emptied the academies of liberal scholars to fill the courts, and his first two nominees to the Supreme Courts were moderate enough to please many Republicans.
So, when Judge Breyer is questioned by the Judiciary Committee members about his views on abortion, for example, his answers will be remarkably like those of Justice Ginsburg. And in this new low-key era, don't expect even the conservative Republicans on the panel to raise any serious objections.
In a May 14, 1994, appearance on CBS News' Face the Nation, Hatch cited Breyer's Judiciary Committee work, referring to Breyer as "moderate" and "reasonable":
HATCH: Well, I think Breyer is going to bring a tremendous legal intellect, of broad-based experience. He -- he -- he, believe it or not, is a person who -- who can work very politically well. For instance, when he was chief counsel of the Judiciary Committee, he was able to bring together Republicans and Democrats in one of the most contentious committees on Capitol Hill, and he did it with aplomb because he was honest, he was decent, he was moderate, he was reasonable in his approach. And when it came time to put him on the First Circuit Court of Appeals -- Reagan had been elect -- elected, the Republicans had stopped any further Democrat judges. And because of the esteem of everybody on that Judiciary Committee, including myself, we put him on the First Circuit Court of Appeals.
Even The Wall Street Journal editorial board supported Breyer's nomination, which, the Journal said, "reflects the political philosophy that some of us, including centrist Democrats, had hoped we'd see as a matter of course from the Clinton presidency." On May 23, 1994, the Journal wrote, "We suspect Mr. Breyer is no Robert Bork, but his writings suggest he is at least someone Mr. Bork could have a discussion with." The Journal approvingly cited opposition to Breyer from Ralph Nader and praised Breyer's work in support of airline deregulation:
The rare criticisms heard so far demonstrate how broad Mr. Breyer's support is. On the left, Ralph Nader is alarmed, while [former Sen.] Howard Metzenbaum [D-OH] complains that because he hasn't always sided with plaintiffs, Mr. Breyer must be the candidate of "big business." This says more about the connection between lawsuits and American liberalism than it does about Judge Breyer. On the right, Pat Buchanan's political group has also shouted opposition.
We suspect Mr. Breyer is no Robert Bork, but his writings suggest he is at least someone Mr. Bork could have a discussion with. In particular, Judge Breyer has shown an understanding of economic markets that is too rare in legal circles. In antitrust, he's been known to include a supply-demand curve in his opinions. As a Senate staffer, he was one of the leaders in fighting for airline deregulation, a historic success for average American consumers (though not without trauma for companies and unions that regulation had protected).
Judge Breyer's 1992 Oliver Wendell Holmes Lecture is an especially thoughtful, moderate critique of modern American economic regulation. It describes the "vicious circle" of regulation that often begins with public and media overreaction to some risk (such as toxic waste), and Congress then galloping to regulate that risk out of existence, which only makes public anxiety worse. "The fact that it is frightening people is no excuse for those in charge of public policy to act irresponsibly," he told the Alexis de Tocqueville Institution in an interview only last month. Since Messrs. Nader and Metzenbaum have made a habit of scaring people about just about everything, with plaintiffs' lawyers cashing in on the results, it's no wonder they don't like Stephen Breyer.
From the November 13 broadcast of NBC News' Meet the Press:
RUSSERT: Do you believe the Democrats should keep on the table the possibility of a filibuster?
DEAN: Absolutely. Of course we should.
RUSSERT: Joe Biden, the Democrat from Delaware, said Judge Alito deserves an up-or-down vote.
DEAN: I think Joe Biden has his own right to make that opinion. He's an elected senator. All I ask is the Democrats stick together under the leadership of [Senate Democratic Leader] Harry Reid [D-NV] and [Sen.] Pat Leahy [D-VT], who is the senior man on that [Judiciary] committee.
RUSSERT: When Bill Clinton was president, he nominated two people to the Supreme Court, Ruth Bader Ginsburg, who was general counsel for the ACLU part of her career, and Stephen Breyer, who worked for Ted Kennedy. And look at these votes, Dr. Dean -- overwhelmingly approved, 96 to 3 and 87 to 9. Republicans, even though they disagreed philosophically with those two liberal jurists, said the president has nominated them, and we'll support them because he won the election, and he has a right to put people on the bench who reflect his judicial philosophy. Why shouldn't the Democrats have the same respect for President Bush's appointees?
DEAN: Well, that is, in truth, not what the Republicans did. In those particular cases, they made those votes. They stonewalled hundreds of judicial appointees that Bill Clinton made, hundreds of them that never came up. They wouldn't even take them up. The Republicans wouldn't even give Harriet Miers a right to an up-or-down vote. How dare they make a case for an up-or-down vote on Judge Alito?
RUSSERT: But they did support those liberal jurists.
DEAN: I don't care who they supported. They killed hundreds of nominations in the Supreme Court. That is the most hypocritical nonsense. As you know, hypocrisy is a feature of Washington's life daily. And that is nonsense. They get no credit for voting for Ruth Bader Ginsburg and Justice Breyer after killing hundreds of Clinton nominations and killing Harriet Miers. How dare they have -- I saw an ad the other day. How dare they have an ad saying, "We want an up-or-down vote on Judge Alito" when they wouldn't give one to Harriet Miers?