Utah senator Orrin Hatch has contended in numerous speeches, op-eds, press releases, and television appearances that the Senate should not act this year to fill the vacancy on the Supreme Court that resulted when Justice Antonin Scalia died on February 13. Instead, says Hatch, the Senate should wait until after the next president takes office and take up the nomination he—or she—then would make.
Among Republican senators, Hatch has been the most vocal in arguing for this position. In an interview, we talked about Scalia, his successor, Obama, and more.
I asked Hatch whether, prior to Scalia’s death, he and his Republican colleagues had thought about the possibility that a vacancy (created by any justice’s departure from the Court) might occur in 2016, an election year and of course the last of Obama’s two-term presidency. “We were concerned” that there might be a vacancy, he said, “but I can’t say we were prepared for one.” Even so, when Scalia died, they quickly agreed (with few dissents) not to take up any nomination Obama might send to the Senate, thus leaving the matter of filling Scalia’s seat until 2017.
Hatch says he didn’t have second thoughts about the no-confirmation-this-year position when on March 16 Obama nominated for Scalia’s seat Merrick Garland, the chief judge of the U.S. Court of Appeals for the D.C. Circuit. While he disagrees with some aspects of Garland’s approach to judging, the Senator has high regard for his intellect and character–“a very fine person,” he described him, whom, a 1997 Clinton nominee, he voted to confirm. But, says Hatch, “I just don’t think we should bring up a Supreme Court nomination” during an election year, especially one that is as “politicized” as 2016 already is. The nomination even of someone Hatch can praise could “wind up being the “most politicized” ever, he said, with “both sides” making ugly contributions.
Even as Hatch wants to avoid that development, he also wants voters to see what’s at stake for judicial selection in this election year. Scalia’s successor, he observes, will provide the deciding vote in cases in which the Court is divided between the four judicial liberals on one side and the four conservatives on the other. So “whoever the fifth justice is going to be will determine the direction of the court for a long time.”
If the Republicans hold to their position, the next president will nominate not only that fifth Justice but also others should additional vacancies occur while she (or he) is in office. Hatch predicts “at least three and maybe four” new Justices will join the Court during the next presidency. In light of that prospect, Hatch says 2016 could prove to be “the most important presidential election in history.”
For there to be new Justice on the Court, the Senate must consent to the appointment of the individual the President nominates. That is how the framers of the Constitution divided and separated the appointment power. And while the president and the Senate have most often been of the same party when there have been vacancies on the Court to fill, that has not been true since the 2014 elections, which put the Republicans in charge of the Senate by a margin of 54 to 46. Noting that 24 Republican seats and just 10 Democratic seats are on the ballot this year, Hatch says that Democrats seem likely to gain some seats but insists that “we can keep control of the Senate. We have to.” Meaning that otherwise there would likely be a Democratic president and a Democratic senate choosing the next Justices and effecting a substantially if not “completely liberalized Court.”
During the interview, Hatch made an obvious point: “There’s no guarantee that a Republican will be elected president.” So, for my last question, I asked him whether, if a Democrat is elected president, he would consider taking up the Garland nomination during the lame-deck session, and confirming him, on the assumption that he would be a less liberal justice than someone Obama’s successor (okay: Hillary Rodham Clinton) would name.
“Not going to get into that,” he said, reiterating that the “next president should make that choice.”
UPDATE: J.P. Freire, director of communications for Senate Hatch, called to say that Hatch’s position is that the Senate should not act during the election season to fill Scalia’s seat. Instead it should wait until after the election season to take up the nomination for the vacancy.
