Sen. Orrin Hatch makes “no apologies” for doing everything he can to stop President Obama from replacing the late Justice Antonin Scalia with a liberal judge, and says he blames Democrats, including Vice President Joe Biden, for politicizing the process of selecting judges.
“Based upon past experience, they will fight very hard to not let anybody on the court who is not liberal, or who is not going to have their judicial philosophy, and in a way I don’t blame them for that,” the Utah Republican told the Washington Examiner this week. “But you know, when they get people who don’t even give a damn what the Constitution says, they just want to play politics on the court, I do blame them for that.”
After Scalia died, Biden said he was surprised that Republicans would block President Obama’s nominee, but Hatch remembers Biden as the original architect of contentious judicial nominations.
As chairman of the Senate Judiciary Committee, Biden oversaw the effort to sink Robert Bork’s nomination to the Supreme Court in 1987, while Hatch was his most prominent defender. Liberal Justice John Paul Stevens described the Ronald Reagan nominee as “a very welcome addition to the Court.”
But Biden, concerned that Bork might vote to overturn Roe vs Wade, claimed “the duty to weigh the philosophy of the nominee” before calling a series of witnesses to dispute Bork’s understanding of the Constitution. Eventually, Senate Democrats and a few Republicans united to filibuster the nomination.
“They were the ones who started all this bad stuff with Bork and what they did to Bork was unseemly, terrible,” said Hatch, a vocal supporter of Senate Majority Leader Mitch McConnell’s refusal to allow President Obama to replace Scalia. “They have systematically destroyed what was once a consensus process.”
Republican determination to leave Scalia’s replacement to the next president doesn’t just rest on the Bork experience, though. President Obama’s two appointments to the court — Justice Elena Kagan perhaps even more than Justice Sonia Sotomayor — have helped confirm to Republicans that Obama can’t be trusted to pick a third Supreme Court Justice.
Conservative legal experts argue that Obama’s appointees made it to the Supreme Court on false pretenses. “We have Justice Kagan, at her confirmation hearing [to be solicitor general], saying there’s no federal right to same-sex marriage and then is literally turning around and helping create that right,” Carrie Severino, chief counsel of the Judicial Crisis Network, told reporters during a Wednesday conference call.
“And then, Justice Sotomayor saying that she would respect the [District of Columbia v.] Heller decision [which protected people’s Second Amendment rights] and then she dissented in McDonald [v. City of Chicago] on gun grounds that directly oppose the Heller decision. So there’s a long track record of reasons for Republicans to be skeptical of a candidate, even when they say ‘the right things’ at a confirmation hearing.”
Kagan’s reputed moderation was a key part of the Democratic pitch for her confirmation when Obama nominated her in 2010. “She’s not one of these people who believes that the law ought to be used to dramatically pull the nation in one direction or another,” Sen. Chuck Schumer, D-N.Y., said at the time.
But Hatch says the opposite has happened. “So far, she has been a straight vote for the left,” he said. “She’s bright enough to be a very good justice on the court if given the chance. I hope that she’ll break out of this ‘I’ve got to do what the Democrats want me to do’ mode.”
Hatch’s critique is stark in part because he’s one of the most prominent GOP proponents of the idea that the Senate should defer to a president who offers a qualified nominee for the Supreme Court. The 40-year senator, who shepherded Clarence Thomas through his confirmation fight four years after the Bork defeat, has no doubt that Obama and Senate Democrats want something else.
Such perceived partisanship has contributed to Hatch’s decision to oppose allowing President Obama to replace Scalia, an appointment that could shift the ideological balance of the court for decades.
“I make no apologies for doing everything within my power to ensure that Justice Scalia will be replaced by someone with an equally strong commitment to ensuring that the court interprets the law and does not make the law that should be made by those who are elected to make it,” he told the Examiner.
Hatch made clear his discomfort with partisan confirmation fights, however, which could undermine the Supreme Court in the public eye. He criticized Kagan, but also said he regrets voting against her confirmation (his reason for doing so was “too technical,” he explained). Hatch also warned of “far-right conservatives” who want to see straight-ticket voting from GOP-appointed justices.
“That isn’t what this is all about,” he said. “If we have a Court of great integrity — which we can have and which it has been in many ways — then people can accept the decisions, even if they disagree with them. But if you don’t have the integrity, people aren’t going to accept them.”
