My view: Sen. Orrin Hatch's filibuster loophole

By Diane Stewart and Crystal Young-Otterstrom

For the Deseret News

Published: Wednesday, March 20 2013 12:00 a.m. MDT

The problem with Sen. Hatch's scheme is that he hasn't found a third way on filibusters.

Susan Walsh, Associated Press

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Sen. Orrin Hatch thinks he has found a convenient loophole.

In the eight years of George W. Bush's presidency, Hatch repeatedly stated that it was unconstitutional for senators to filibuster the president's nominees to our federal courts. He even went so far as to write a law review article defending his reasoning.

Then President Barack Obama was elected. While many of his fellow Republicans, faced with a Democratic president, simply threw out their previous opposition to filibustering judicial nominees, Sen. Hatch was not so straightforward. He didn't want to openly take part in a practice that he had just spent eight years calling unconstitutional. But he also really wanted to help his fellow Republican senators block President Obama's judicial nominees. So he found what he apparently thinks is a loophole. Instead of voting for or against filibusters of Obama's nominees, Hatch frequently steps aside and votes "present." He has done so on four of the president's judicial nominees and on defense secretary nominee Chuck Hagel.

The problem with Sen. Hatch's scheme is that he hasn't found a third way on filibusters. Instead, he's just found a way to vote "no" by another name. Since it takes 60 "yes" votes to break a filibuster in the Senate, any vote but "yes" is a vote to let the filibuster continue. Sen. Hatch's "present" votes are, then, exactly the same as "no" votes. It's not a loophole: it's a transparent attempt to have his principles and flout them too.

One of the filibusters that Sen. Hatch enabled with a "present" vote was that of Caitlin Halligan, President Obama's nominee to the D.C. Circuit Court of Appeals, often considered to be the second most important court in the country. That was in 2011, when there were three vacancies on the 11-seat court. That number has since grown to four, meaning that more than one-third of the court's active judgeships are now vacant, thanks to obstruction by Senate Republicans.

Sen. Hatch should stop trying to fool us with his "present" loophole and instead stand by his stated principles — in letter and in spirit. If the senator believes that the Constitution is inspired, as we do, then he has an even greater duty to uphold it by giving senator's yes-or-no votes instead of sheepish 'present' votes. He said himself less than five years ago, "The Senate gives the president advice about whether to appoint his judicial nominees by giving or withholding our consent. We are supposed to do so through up-or-down votes. That is what the Constitution assigns us to do and what the American people expect us to do."

If he believes that, there is only one way to vote when the time comes to break the filibuster of a judicial nominee, regardless of who the president is — and that's a vote of "yes."

Utah voters deserve to know whether Sen. Hatch still believes that filibustering judicial nominees is unconstitutional, or if he is using this loophole to hide the fact that he's changed his mind.

Diane Stewart is an arts advocate and community activist and she serves on several community boards, including Art Access/VSA Utah and the UMFA's National Leadership Council. Crystal Young-Otterstrom is the state chairwoman of LDS Dems, an official caucus of the Utah Democratic Party and runs a marketing and event planning business from home.

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