Hatch says Senate to debate future of courts, not just nominees

Sen. Orrin Hatch urged President Barack Obama in a phone call Monday not to appoint an "activist judge," who might legislate from the bench, to replace retiring Supreme Court Justice David Souter, and says Obama reported he is not planning to do so.

Obama made the call to Hatch, a senior member of the Senate Judiciary Committee, to consult about possibilities and politics for a nomination. Hatch's office released a short statement about the call afterward.

It said Hatch urged Obama "against choosing a judicial activist," and "advised the president to choose a nominee who is more in step with mainstream America and would uphold the rule of law."

Hatch told MSNBC later that Obama told him, "Look, don't worry, I'm not going to appoint a radical or an extreme person. I'm going to appoint someone in the mainstream, and I'm going to be very pragmatic about what I do."

Hatch added, "If he does that, I think he's going a long way toward having a slam-dunk" nominee. Hatch said, "I'm hopeful the president will do today what he told me personally."

Meanwhile, Hatch's office released earlier in the day a law-journal article that Hatch wrote, saying he expects Obama to appoint activists to courts, and the resulting debates will be on a much bigger question than nominees themselves: whether American judges should interpret law, or make law from the bench.

"I hope that the debate of President Obama's judicial nominees will really be a debate of the kind of judge our liberty requires," Hatch wrote for an upcoming issue of the Harvard Journal of Law and Public Policy, based on a speech he gave last month to the Federalist Society.

"The debate should be about whether judges decide cases using enduring mandates and impersonal rules of law or by using their own moral reflections and personal impressions," he wrote.

Hatch added that "Obama has already taken sides in this debate." Hatch wrote — as he said aloud this weekend on ABC's "This Week — that he believes Obama will seek activist judges who will legislate from the bench, and Hatch supported that argument by votes Obama took in the Senate and promises he made on the campaign trail.

"When he was a Senator, he (Obama) voted against the nomination of John Roberts to be Chief Justice, stating that judges decide cases based on their deepest values, their core concerns, and the content of their hearts," Hatch wrote.