Utah Sen. Orrin Hatch, appearing on the Sunday news show "This Week," said he is concerned President Barack Obama will opt for an "activist" nominee to replace outgoing Supreme Court Justice David Souter.
Hatch, the Senate's longest-serving Republican and a member of the Senate Judiciary Committee, sparred with the committee's chairman, Sen. Patrick Leahy, D-Vt., on the ABC-TV show hosted by George Stephanopoulos. Hatch reacted to comments made by Obama following Souter's Friday retirement announcement, which indicated the president would seek someone who "understands that justice isn't about some abstract legal theory or a footnote in a casebook" but also "about how our laws affect the daily realities of people's lives."
"If he's saying that, he wants to pick people who will take sides. He's also said that a judge has to be a person of empathy," Hatch said. "What does that mean? Usually that's a code word for an activist judge."
Leahy discounted Hatch's worry that Obama was delivering a subverted message in his list of criteria for a nominee.
"I've known President Obama long enough," Leahy said. "He doesn't need to use code words. He speaks very plainly and very directly."
Stephanopoulos noted that most observers believe Obama will likely choose a woman nominee in acknowledgment of the gender disparity of the current panel whose only woman member, since the departure of Justice Sandra Day O'Connor in 2006, is Justice Ruth Bader Ginsburg. He cited three names currently considered among the frontrunners for the post, including appellate judges Sonia Sotomayor and Diane Wood and the Obama-appointed U.S. Solicitor General Elena Kagan. Leahy said he felt it would be appropriate for the president to pursue a woman nominee for the open spot.
"I would like to see, certainly, more women on the court," Leahy said. "Having only one woman on the Supreme Court does not reflect the makeup of the United States. I think we should have more women. We should have more minorities."
On the question of whether the three judges being discussed — Sotomayor, Wood and Kagan — were ones he would consider political radicals, Hatch had this to say.
"I don't think they're radicals, but there's no question that they are on the far left of the spectrum," Hatch said.
In lieu of those possible nominees, Hatch did not offer any alternates, and said he would not make any recommendations "unless he (Obama) calls me."
Leahy expressed confidence in the president and held the Obama Cabinet appointments up as evidence that he will make a thoughtful choice to replace Souter.
"The fact of the matter is, we will have an up-or-down vote on whoever it's going to be, and I hope the president would go with his instincts," Leahy said. "Look what he's done with his Cabinet. He's had pretty darned good Cabinet choices, and I think he's going to make a very good choice here."
Leahy, as judiciary committee chairman, will likely play a pivotal role in the nomination process as the committee is charged with screening the president's nomination choice. The committee, after holding a hearing at which the nominee is evaluated for the position, issues a report of support, neutrality or opposition of the nominee to the full Senate. Earning confirmation requires a simple majority vote by the Senate following the committee hearing.
Hatch, a former chairman of the committee, said while it is widely acknowledged the president will pick a left-leaning judge, he hopes it will be a person who is prepared for the job beyond political stance.
"We all know he's going to pick a more liberal justice," Hatch said. "Their side will make sure that it's a pro-abortion justice. I don't think anybody has any illusions about that. The question is, are they qualified? Are they going to be people who will be fair to the rich, the poor, the weak, the strong, the sick the disabled?"
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