Orrin Hatch (2016) vs. Orrin Hatch (1987-2008)
“The duty of the President to nominate and the duty of the Senate to give its advice and consent to Supreme Court Justices are among the most important functions of our constitutional government. Politicizing the sensitive Supreme Court selection process carries the danger of permanently injuring the independence, integrity, and institutional individuality of the third branch.”
— Senator Orrin Hatch, July 30, 1997
For weeks now, Senator Orrin Hatch has been the point man for the GOP’s campaign of deception, deflection, and distraction as it frantically tries to keep the American people from fully understanding the severity of the obstruction currently occurring in the Senate. He’s written quite a few pieces, both for press releases and for publications such as Time, USA Today, The New York Times, Bloomberg View, The Deseret News, and the Salt Lake Tribune.
Hatch has killed lots of trees telling much the same story:
- The Democrats are hypocrites.
- Both parties are at fault for the deterioration of the confirmation process (though Hatch can’t seem to recount anything Republicans did)
- The Constitution doesn’t say what the Senate’s role is
- GOP obstruction is well-grounded in precedent.
I hope to go through his claims point-by-point soon, but not now. Today, I’m going to touch only on the first of these, that the Democrats are hypocrites.
Hatch is right.
But the Republicans are just as guilty, so the argument is a complete red herring. On this issue (as on many), politicians take whatever side of the argument that best serves their political ends. I won’t rehash Hatch’s legitimate criticisms of Joe Biden, Charles Schumer, and others; I’ll stipulate that his criticisms are, on the whole, accurate.
But look at what a hypocrite Hatch is.
September 2005, asked if the Senate should move quickly to replace Chief Justice Rehnquist: “Oh yes. No question about it, in my eyes…I would say so because Chief Justice Rehnquist would want it to go forward. He would want us to move ahead. He revered the court. As you know, gave 33 years of his life to the court. And he certainly would not want to take any—would not want us to take any action that would not have as full a complement of the court sitting the first Monday of October that we can put there.” C-SPAN Interview
March 15, 2016: “The Constitution prescribes no specific structure or timeline for the confirmation process, and the Constitution’s text and structure as well as longstanding historical practice confirm that the Senate has the authority to shape the confirmation process how it sees fit.” Press release
In 2005, with less than a month before the beginning of the October Supreme Court session, Hatch felt filling the vacancy quickly was very important. Apparently today having a Supreme Court that can definitively rule on appeals isn’t actually very important to Senator Hatch.
July 30, 1987: “In the history of the Nation, fewer than a half dozen Supreme Court nominations have been chopped off by a dull political axe. And, as the record indicates, in those cases, it was the Court that was left bleeding. It was the Court that suffered a loss of independence, integrity, and institutional individuality.” Congressional Record
March 31, 2016: “For the good of the nominee and to help preserve the integrity of the court, the Senate should consider a Supreme Court nomination after the presidential election.” USA Today
The “integrity” of the Supreme Court has been a concern of Hatch’s for four decades. In 1987, when Robert Bork’s nomination was in the middle of taking 114 days to receive a floor vote (Judge Garland would pass this wait on July 9), Hatch spoke at length on the Senate floor, summarizing the history of nominees on whom the Senate failed to vote. In each case, he said, the integrity of the Senate was damaged. Today, he argues that refusing to vote on Judge Garland’s nomination would preserve the integrity of the court.
July 30, 1987: “Specifically, they foresaw the Senate as an excellent check to ensure no “unfit characters” attained high judicial office. In other words, nominees had to be screened for qualities of morality, integrity, and ethical sensitivity… Nowhere in the language of the Constitution or in the debates of the 1787 Convention, however, do we find hints of the need for ideological inquisitions to maintain the balance of the Nation’s highest court.” Congressional Record
March 22, 2016: “[T]he Senate must seek to protect the judicial branch from ever-increasing partisan and political influences.” BloombergView
In 1987 Hatch was clear about the role of the senate: it is to “ensure no ‘unfit characters'” based on morality, integrity, and ethics are appointed to high judicial office. That’s it! Nothing about waiting 10 months for a new president to be elected. Nothing about saving the nominee from the circus of confirmation hearings (which, by the way, would be a circus only at the GOP’s doing). Contrary to protecting “the judicial branch from ever-increasing partisan and political influences,” then-minority member Hatch said the Constitution says nothing about “maintaining the balance of the Nation’s highest court.”
March 19, 1997: “The Senate has an obligation to the American people to thoroughly review the records of the nominees it receives to ensure that they are qualified and capable to serve as Federal judges. Frankly, the need to do that is imperative.” Congressional Record
March 22, 2016: “Reflecting on the Senate’s solemn duty with respect to Supreme Court nominations, I am ore resolved than ever to move forward with the confirmation process only after this toxic election season is over.” BloombergView
In 1997, the need to hold confirmation hearings was “imperative.” Today, for a nominee to the highest court of the land with cases pending – not so much.
April 1, 2008: “One of the most important things we do is consider and vote on the President’s nominations to the Federal bench and the Department of Justice. I can put it simply: We are failing to do our duty.” Congressional Record
March 12, 2016: “The Senate’s job — its constitutional duty — is to determine the best way to exercise its advice and consent power in this particular situation.” Deseret News
Never before 2016 did Hatch say the Senate’s duty related to judicial nominations included deciding how long to keep vacancies open; in April of 2008, Hatch said the Senate was failing to do it’s job by not voting on judicial nominees. Miraculously, in March of this year, he had discovered a constitutional duty that enables the Senate to hold a Supreme Court vacancy open for a year.
Please note how Hatch described the role of the Senate in the quote at the top of the page: “[T]he duty of the Senate to give its advice and consent to Supreme Court Justices [is] among the most important functions of our constitutional government” [emphasis added].
Hatch is clear: the duty of the Senate is to give its advice and consent. This doesn’t mean confirm everybody, but it does mean consider everybody. Withholding not only consent but also advice, which is what the Senate GOP is doing, is the exact opposite of the duty Hatch identified.
Delaying a vote for almost a year isn’t part of a Senator’s duty to the country. But it may benefit his political party. Could it be that Senator Hatch sees his party loyalty as more important than his duty as a senator?
He and his fellow GOP senators are sure acting that way.
March 19, 1997: “We ought to get rid of the partisanship when it comes to judges and go ahead and do what is right.” Congressional Record
I couldn’t have said it better myself.