Like many of my Senate colleagues, I recently met with Chief Judge Merrick Garland, President Obama’s nominee to the Supreme Court. I have known Judge Garland for many years and think highly of his character and credentials. He has an excellent reputation among lawyers and fellow judges alike. I met with Judge Garland as a friend and out of respect for his position as a distinguished federal judge. We discussed our families and a variety of personal matters.
Our meeting, however, does not change my conviction that the Senate should consider a Supreme Court nominee after this presidential election cycle. Especially given my personal affection for Judge Garland, I remain committed to thoughtful consideration of a nominee without the particular divisiveness of this campaign season further politicizing the confirmation process.
I have taken this principled position in accordance with decades of established precedent and the guidance provided in the Constitution. The president has the power to nominate judges, but he cannot appoint them without the advice and consent of the Senate. These distinct roles are part of the checks and balances delineated in the Constitution, which allows the president and the Senate to determine for themselves how best to exercise their respective powers.
Over the years, the Senate has considered nominations in different ways at different times, depending on the circumstances. Consider these precedents with great bearing on the current circumstances:
- The Senate has never confirmed a nominee to a Supreme Court vacancy that opened up this late in a term-limited president’s time in office.
- This is only the third vacancy in nearly a century to occur after the American people had already started voting in a presidential election, and in the previous two instances — in 1956 and 1968 — the Senate did not confirm a nominee until the following year.
- And the only time the Senate has ever confirmed a nominee to fill a Supreme Court vacancy created after voting began in a presidential election year was in 1916, and that vacancy arose in very unique circumstances only because Justice Charles Evans Hughes resigned his seat on the court to run against incumbent President Woodrow Wilson.
Consistent with these and other precedents, and mindful of how the political dynamics of this presidential election could further poison what should be a respectful and fair confirmation process, a majority of senators made clear soon after Justice Antonin Scalia’s death that the Senate would consider a nominee after the election season is over.
This position is not only consistent with a century of precedent; it has also been embraced by both Democrat and Republican leaders throughout the years. Democrats’ own words demonstrate that they would hold the same position if they were in a similar situation. For example, when he chaired the Judiciary Committee in 1992, Vice President Joe Biden recommended that the Senate refrain from considering a Supreme Court nomination in a presidential election year. We agree with him that combining a divisive Supreme Court confirmation fight and a nasty presidential election campaign would do more harm than good. Moreover, it would be unfair to the nominee. Indeed, holding the confirmation process amid the clamor and commotion of the current presidential election would thrust Judge Garland into a punishing political gauntlet that is below the dignity of a Supreme Court nominee. Because I care for Judge Garland personally and want to maintain the integrity of the Supreme Court, I believe the Senate is right to fill the current vacancy after the political season has ended.
A majority of senators took this position shortly after Justice Scalia’s passing so that President Obama would know how a nomination would be handled. This decision is about the confirmation process, and has nothing to do with the qualifications, character or record of the nominee. The reasons for considering a nominee after the political fireworks of a presidential election remain just as compelling today as they were in February following Justice Scalia’s death. In fact, the bitterness, pressure tactics, ad campaigns and political grandstanding since then have only confirmed that we made the right decision.
The question for the Senate is when and how the confirmation process for the Scalia vacancy should occur. Democrat and Republican leaders have long maintained that the height of a presidential election season is not the right time. When the Senate does move forward, the confirmation process will no doubt function in the familiar way, with a Judiciary Committee hearing and a debate and vote in the full Senate. The nominee’s background and reputation, the views of experts, and the opinions of pundits and other third parties will be relevant when the confirmation process occurs, but not before.
Too many judges have relied on political and personal motivations, rather than the law, to decide cases. As a result, political agendas and objectives have had too great an influence on the process for appointing judges. Separating the confirmation process from a contentious presidential election campaign, therefore, is in the best interest of the judiciary, the Senate and the nation.
Sen. Orrin Hatch, R-Utah, is Utah’s senior U.S. senator and the longest-serving Republican in the Senate.
Editors Note: A draft of this op-ed was erroneously published on DeseretNews.com prior to final revisions and edits from Sen. Hatch. We apologize to Sen. Hatch and our readers for this error.