Americans are frustrated with their government today. Many don’t believe politicians do what they say. In these turbulent times, however, Utahns can be proud of Sen. Orrin Hatch, whose leadership in the federal judicial appointment process has been truly outstanding. Indeed, all Americans owe Hatch and the rest of the Republican leadership a debt of gratitude for their leading role in defending the Supreme Court and the Constitution.
Hatch was first elected in 1976, just as the public began to realize how completely the federal judiciary had asserted control over our lives, our liberty and our country. A few years later Hatch became a stalwart ally of President Ronald Reagan’s efforts to appoint judges who interpret the laws instead of making them, and he has been an important contributor ever since.
Hatch’s leadership became especially important this year, when the untimely death of Justice Antonin Scalia left a gaping hole on the highest court in the land. Finding a suitable replacement for Scalia would have been a difficult task in any year, but this year Hatch had a strategic position from which to protect his legacy. Indeed, by the time the vacancy arose, Hatch had been advocating in the Senate for Scalia’s principles longer than Scalia had been on the bench.
Scalia knew — as do most Americans — that judges are supposed to interpret and apply the law, not make it up as they go along. This role ensures that the American people and their elected representatives, not federal judges, are responsible for the nation’s future.
So when Scalia died in February, Hatch and the Republican leadership insisted that the resulting vacancy be filled in the right way at the right time. Many assumed the Senate had to confirm a replacement quickly, regardless of the stakes or timing. But fortunately, Hatch’s broad experience and perspective suggested a different course, and Hatch used his considerable skills as an advocate to pursue it.
He began by taking to the Senate floor and the airwaves to explain why the next president should fill the Scalia vacancy. First, he said, the Senate had already handled Supreme Court nominations at least a dozen different ways. He reminded everyone that in 1992, then-Sen. Joe Biden (the chair of the Judiciary Committee) advised President George H.W. Bush not to fill any vacancy before the election. Like Biden before him, Hatch had concluded that properly considering a Supreme Court nominee would be impossible in the middle of a presidential campaign.
Second, Hatch argued, elections have consequences. The future of the Supreme Court had already become an important issue in the presidential election, and America would soon be electing a new president. The leading candidates were likely to nominate very different justices with very different judicial philosophies. The timing of the Scalia vacancy, therefore, created a unique opportunity for the American people to make their voice known through the election.
In hindsight, it is obvious Hatch was right on both counts. As Scalia once argued, the Supreme Court’s eagerness to control nearly every aspect of American life turns every judicial nomination into a “hot potato,” since each new nominee might be the deciding vote that changes how the Constitution is interpreted and understood. And fighting such battles during what would become an unusually heated presidential campaign would have made the confirmation process less, not more, fair.
Hatch and the Republicans gave the American people a special opportunity to be heard on this issue. They spoke unequivocally. The percentage of voters for whom Supreme Court appointments were the most important factor tripled from 2008, and more than two-thirds of voters said the Supreme Court was an important factor in their decision.
Like principled leaders do, Hatch took some criticism for his position. Unlike his critics, though, he was looking beyond a single election cycle. And he had to consider the long-term integrity of the judicial branch, not just a particular nominee for a particular vacancy. His courageous actions this year helped preserve the right of the American people to decide who fills the Scalia vacancy. Our liberty, the courts and the Constitution itself are now safer.
Thank you, Sen. Hatch.
Carrie Severino, a former law clerk for U.S. Supreme Court Justice Clarence Thomas, is chief counsel of the Judicial Crisis Network.