On judges, Hillary Clinton has some very bad "experience"

By David Kairys

Sen. Hillary Clinton has much to offer as a presidential candidate. But her main campaign theme (experience and action, rather than eloquent speeches) is troubling, particularly when it comes to the crucial question of judicial appointments.

It would be offensive to judge Sen. Clinton based on her husband's record - if she weren't asking us to do exactly that. Her "35 years of experience" rest heavily on her eight as first lady, which she discusses as if she were co-president.  She presents the Clinton administration as what we can expect from her presidency.

That's the problem. What we got from Bill Clinton, besides the easy jokes on late-night TV, was what she criticizes Sen. Obama for - stirring speeches on major issues but little meaningful action or improvement for middle-class and poor people. That's not Obama's record, but it sure fits Bill.

Bill Clinton talked a good game - eloquently "feeling our pain" in speeches - but he gave us mostly pro-corporate, GOP policies and soothing rhetoric without meaningful action. His Democratic version of Republican policies lost control of Congress and set the stage on which George W. Bush could look appealing.

It's usually assumed that President Clinton was principled and stood his ground, as he promised in campaign rhetoric, at least in the area of courts, justice and judicial appointments. He didn't.
Clinton's appointees were diverse, but he didn't appoint judges with a record of concern for civil rights and civil liberties, the plight of working or poor people, the environment, the need for constraints on corporations.

His best Supreme Court appointee was Ruth Ginsburg, who he said at the time "cannot be called either liberal or conservative." Instead of restoring balance after the extremely conservative picks of Reagan and Bush I, as Clinton promised, he picked centrists, and sometimes conservatives.

He elevated to the appeals courts a number of Reagan and Bush I lower-court appointees. He left many seats vacant, and had the lowest number of appointees per term in recent times.

Instead of fighting the GOP majority in Congress for what he told us he most dearly believed, he actually turned over the whole judge-selection process to the Republicans by having all judicial candidates vetted by Sen. Orrin Hatch, the conservative Utah Republican who chaired the Judiciary Committee. If Hatch's response was "liberal" or "activist" - terms he seemed to apply to almost anyone not as conservative as Justices Scalia and Thomas - Clinton dropped the nominations.

For example, Clinton suggested Peter Edelman, an accomplished law professor and close friend of the Clintons. Hatch called him a "liberal activist." Clinton didn't make the nomination.

Clinton nominated Judith McConnell, a qualified California judge with a record as a moderate. Republicans objected. A decade earlier, McConnell granted the request of a 16-year-old boy that he live in the custody of his dead father's gay partner rather than with his mother because the mother had been found unfit. Clinton withdrew the nomination.

One of Clinton's best nominations was Lani Guinier, another friend of the Clintons, to head the Civil Rights Division of the Justice Department. Guinier, a black law professor at Penn (now at Harvard), was an advocate for creative solutions to the long-standing problem of gerrymandered congressional districts.
District lines were (and often still are) drawn so every district had a white majority, making it impossible for an African-American to win as long as whites voted for white candidates.

In North Carolina, there had been no blacks sent to Congress since just after the Civil War, despite a large black population. Guinier proposed that instead of redrawing districts to create some majority-black districts, the winner-take-all and other undemocratic features of our existing two-century-old electoral system should be updated, which would also open the system to blacks and other minorities.

Republicans attacked her, calling her a "quota queen." Clinton's response? He claimed, probably falsely, that he wasn't familiar with her writings and positions. He withdrew her nomination just before her Senate hearing, which would have been a great opportunity for a national discussion of these issues whether or not she was confirmed.

Bill Clinton did what he thought was most likely to gain and maintain his power. His values, personal loyalties or principles, even those of American justice, meant little or nothing.

If Hillary Clinton doesn't plan to walk down the same destructive path, she should put aside all the Clinton-administration experience talk and tell us where her husband went wrong, and what she would do differently.

David Kairys is a professor of constitutional law at Temple law school. His memoir, "Philadelphia Freedom: Memoir of a Civil Rights Lawyer," is due in the fall.