Various media outlets have failed to challenge the claims of Republican senators that they disregarded ideology when voting to confirm Supreme Court justices Ruth Bader Ginsburg and Stephen Breyer in the 1990s. In fact, both Ginsburg and Breyer were consensus nominees, suggested to President Clinton by Sen. Orrin Hatch (R-UT), and had reputations and judicial records of moderates at the time of their nominations.
Various media outlets have failed to challenge the claims of Republican senators that they disregarded ideology when voting to confirm Supreme Court justices Ruth Bader Ginsburg and Stephen Breyer in the 1990s. Republicans use this claim to argue that because Republicans voted overwhelmingly to confirm Ginsburg and Breyer, Democrats should extend the same courtesy to current Supreme Court nominee Samuel A. Alito Jr. In fact, contrary to suggestions by Sen. Orrin Hatch (R-UT) and others that they voted for Ginsburg and Breyer for reasons of comity and deference to the president, Ginsburg and Breyer were consensus nominees, suggested to President Clinton by Hatch, and both had the reputations and judicial records of moderates at the time of their nominations.
As Media Matters for America noted, Ginsburg was regarded as a moderate on the U.S. Court of Appeals for the District of Columbia Circuit. 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 Legal Times study of the 1987 appeals court that found Ginsburg had voted more consistently with Republican-appointed judges -- such as Kenneth W. Starr and Laurence H. Silberman -- than those appointed by Democrats.
Breyer was also frequently described as a "centrist" and a "moderate" during his confirmation. 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.
Moreover, Hatch -- 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. Additionally, Hatch wrote in a footnote to his book: "Not many people realize this, but her [Ginsburg's] voting record at the appellate court was very similar to that of another subsequent Supreme Court Justice, Antonin Scalia." Hatch also described Breyer as "moderate" and "reasonable" on a May 14, 1994, appearance on CBS' Face the Nation.
Nevertheless, a January 25 New York Times article by reporter David D. Kirkpatrick on the Senate Judiciary Committee's party-line vote recommending Alito's nomination simply reported the Republicans' claims without challenge:
Recalling the overwhelming and bipartisan majorities that approved President Bill Clinton's Supreme Court nominees, Justices Ruth Bader Ginsburg and Stephen G. Breyer, several Republican senators said their party had evaluated the qualifications of nominees on less ideological terms. They said the Democratic opposition to Judge Alito could alter the judicial confirmation process for years to come.
Similarly, a January 25 Washington Post article by staff writer Charles Babington quoted Sen. Lindsey Graham (R-SC) "chastis[ing] Democrats" for not giving Alito "bipartisan backing similar to that enjoyed" by Ginsburg and Breyer:
Graham called Alito an outstanding nominee and chastised Democrats for failing to give him bipartisan backing similar to that enjoyed by Justices Ruth Bader Ginsburg and Stephen G. Breyer, who were nominated by President Bill Clinton.
"What's changed?" Graham said. "It's not the quality of the nominees, it's the quality of the process." He said Democrats want to make "a campaign issue of the decisions on the court." In that contest, he warned Democrats, "we'll clean your clock."
On the January 24 edition of CNN's Lou Dobbs Tonight, host Lou Dobbs interviewed Hatch, who pointed to the Ginsburg and Breyer nominations in claiming that Republcians "never had a litmus test" and bemoaned the "different tack" taken by Democrats. Dobbs failed to challenge Hatch or to even note Hatch's role in the Ginsburg and Breyer nominations. From the January 24 Lou Dobbs Tonight:
DOBBS: Do you see any way, Senator Hatch, to remove Roe v. Wade as the litmus test, the fulcrum point in this?
HATCH: Well, it's become a major, major litmus test by Democrats. We've never had litmus tests before. I'll cite with particularity, we knew, as Republicans, that Ruth Bader Ginsburg and Stephen Breyer, were both pro-choice, they were both social liberals. But Ruth Bader Ginsburg on a 96-3 vote, Stephen Breyer got an 87-9 vote. Republicans voted for them because they were qualified. And Bill Clinton was the president. But Democrats have taken a different tack here, and I think it's very detrimental and harmful to the nation.
Hatch also appeared on the January 24 edition of Fox News' Hannity & Colmes. Co-host Sean Hannity asked Hatch about the "very gracious" treatment he accorded Ginsburg and Breyer:
HANNITY: Well, you know, it's very interesting to me. You just heard that there's a litmus test. You know, Senator, look, I may not be as gracious as you. And I mean this sincerely. You were very gracious about Ruth Bader Ginsburg, about Judge Breyer. You compare the treatment of the Republicans to people that I believe are very out of the mainstream. And I'm just wondering: Is it time for Republicans that are nice like yourself to start taking the gloves off, if there's another Democratic president? Look at how they treated this man. I don't think they -- I think they had made up their mind before they even got in committee, am I right?
HATCH: Well, there really was shabby treatment. There's no question about it. This was the first time in history for a nominee who reported out of the committee, that there was a straight partisan vote. It's never happened before. And frankly, to do that to this fellow, who had the support, you know, of virtually everybody who's ever worked with him, including seven of his colleagues, including, you know, both Democrats and Republicans, on the 3rd Circuit Court of Appeals, who said that he's a tremendous judge, including the American Bar Association, that gave him the highest rating possible twice now. And, you know, it's really pathetic. I'm really concerned about it.
HATCH: And, you know, it all comes down, Susan [Estrich, guest co-host], to abortion. You know it; I know it. They're just terrified of these far-left groups that just seem to control the Democrats in the United States Senate. It's pathetic. When the far-right groups came to me as chairman of the committee and demanded that we -- that we mistreat Ruth Bader Ginsburg and Stephen Breyer, I told them, "Get out of the office." We're not going to let them determine what our votes are, and we're not going to play that type of ridiculous game. And Ruth Bader Ginsburg passed 96-3, even though we knew she was pro-abortion, even though she was, in our opinion, wrong on the social issues. Same thing with Judge Breyer, Justice Breyer. He passed 87-9. I mean, we treated them fairly, and that's in contrast of the way this really fine man is being treated.