By Gaffney, Edward, Jr.
Commonweal , Vol. 121, No. 12
We are well into the second year of the Clinton administration; it's time Lloyd Cutler or someone in the White House told the president to stop frittering away one of his most important powers, the constitutional power to appoint federal office-holders. That may seem an odd piece of advice in the wake of the president's nomination of Stephen Breyer to serve as an associate justice on the Supreme Court.
Judge Breyer's confirmation process will probably be more like a love-in than a hearing. It will surely bear no resemblance to the rough treatment that Judge Robert Bork and Justice Clarence Thomas received when their appointments to the High Court were scrutinized by the Senate Judiciary Committee. For one thing, at the present moment the president and the Senate majority are of the same political party. A Republican president commended the nominations of Bork and Thomas to a Senate controlled by the Democrats.
As a clerk to Justice Arthur Goldberg, whose seat on the Court he has been appointed to occupy, Breyer has been labeled a "liberal" in some media accounts. It surely doesn't hurt Breyer that he's a Democrat or that he served as chief counsel to the Senate Judiciary Committee when Senator Edward Kennedy (D-Mass.) chaired it. But Breyer's nomination may actually help to break down the simplistic labeling of judges into political categories, such as "liberal" and "conservative." For example, Senator Orrin Hatch (R-Utah) finds Breyer far more acceptable than he would have Interior Secretary Bruce Babbitt, a point to which I will return. Breyer's narrow view of the antitrust laws and his commitment to deregulation make him the darling of the Chamber of Commerce. He also has a solid reputation for combining serious attention to the details of the cases before him with a subtle appreciation of the human dimensions of the law. His appointment will cause few, if any, ripples in the Senate, which will probably confirm him in a vote as lopsided as the margin by which Justice Ruth Bader Ginsburg was confirmed last year (96-3) or by which Justice Scalia was confirmed eight years ago (98-0).
But the Supreme Court is not the only post subject to the presidential appointment power. The smooth transition of power from one president to another should normally occur within sixty to ninety days at most. When the transition represents an important political shift, as with the shift from Carter to Reagan, the newcomers are usually all the more eager to get their hands on the levers of power as quickly as possible to execute their mandate promptly. The Clinton White House has been curiously sluggish in handling one of the most significant powers of the presidency.
Seventeen months into this administration, there is still squabbling going on about how to fill a number of important positions in the government. For example, the Equal Employment Opportunity Commission still lacks a chair. And the National Labor Relations Board got its new chair, Stanford law professor William Gould IV, a few weeks ago, after he had been left dangling in the wind while the White House staff pondered what to do with completely unfounded criticism of him. Gould is widely acknowledged as a renowned scholar in the field of labor law, and his reputation for fairness is exceeded only by that of John Fanning, the able chair of the NLRB for decades, whom President Ronald Reagan sacked promptly after taking over the reins in 1981.
Who can forget the fiascos at the Justice Department, first over finding an attorney general who had paid her nanny taxes or who didn't have to because she didn't have any children, and then over Lani Guinier, who wasn't exactly going up for tenure as a law professor, but who was being asked to run the Civil Rights Division?
There are some things that the White House staff still just doesn't get. For example, they obviously don't grasp the benefit of treating ambassadorships as an important political responsibility. …