Hatch himself wrote in his autobiography:
[It] was not a surprise when the President called to talk about the appointment and what he was thinking of doing.Breyer was confirmed 87-9. Ginsburg 96-3. At the time, Republicans were a minority in the Senate, a situation not unlike today. I must admit a bit of nervousness at those who want to FILIBUSTER MIERS NOW! without regard to the political situation. Fact is, we need a new Supreme Court justice, and Bush, as president gets to nominate. The Senate, run by Republicans, gets to confirm. That's a perk of winning elections, and one that I hope Democrats get in just a few short cycles. We could filibuster, but really, it was in Bush's interest, just like Clinton's, to find a safe candidate. Reid offered up Miers, Bush agreed.
President Clinton indicated he was leaning toward nominating Bruce Babbitt, his Secretary of the Interior, a name that had been bouncing around in the press. Bruce, a well-known western Democrat, had been the governor of Arizona and a candidate for president in 1988. Although he had been a state attorney general back during the 1970s, he was known far more for his activities as a politician than as a jurist. Clinton asked for my reaction.
I told him that confirmation would not be easy. At least one Democrat would probably vote against Bruce, and there would be a great deal of resistance from the Republican side. I explained to the President that although he might prevail in the end, he should consider whether he wanted a tough, political battle over his first appointment to the 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.
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.
We filibuster Miers, which might be successful with possible Republican defections, and then what? We got Janice Brown? Priscilla Owens? We filbuster them, then what? What's being accomplished? What's the end game? To drive home that Miers is the product of Bush cronyism? The Republicans are already doing that. That she's a tool of Big Business? Sure, let's make the point. But to try and filibuster a candidate who is not an extremist, as far as we know, does little to advance the Democratic agenda. And even if successful, we'd likely end up with something far worse.
It's early, and information may arise that makes Miers unacceptable, but that hasn't happened. Not yet. Crying "filibuster" at this point, merely because she was nominated by Bush, makes little practical sense.
Ask tough questions, definitely. Highlight the cronyism, corporatism that pervades everything Bush touches, sure. But knee-jerk opposition without regards to the facts on the ground is not healthy. Let's enjoy the Republicans eating their own for now. And if information arises that places her in the extremes of American jurisprudence, then we open up.
Otherwise, Miers is an even better candidate for the next Souter than Roberts. We won this round. This nomination is born of Bush's weakness, just as Clinton's nominations of Ginsburg and Breyer, at Hatch's urging, were born of his own weakness.
It doesn't mean that Reid agrees with Miers, just as Hatch is the ideological opposite of both Ginsburg and Breyer. But Hatch understood that the party in power gets to chose someone more like them than those in the opposition, and he used his influence to temper the damage from his perspective. Reid just did the same.