Two weeks ago, the Senate confirmed the nominations of four women and men to the U.S. Court of Appeals. Each holds the American Bar Association’s highest rating and is highly regarded throughout the legal profession. Each was supported by home-state senators, both Democrats and Republicans. Yet these superb nominees received between 38 and 41 votes against them.
With nearly 140 life-tenured judicial positions vacant, and President Donald Trump steadily sending nominees to the Senate for review, it is worth taking a step back to remind ourselves why the appointment of federal judges is so important.
Our system of government came together by design, not by accident. The Constitution’s preamble lists the purposes of that design, including justice, domestic tranquility, common defense, the general welfare and the “blessings of liberty.” Our system of government will produce these results only if it works as envisioned.
America’s Founders designed the judiciary to be what they called the “weakest” and “least dangerous” branch. Judges are supposed to settle real legal disputes by impartially interpreting and applying the law. They are to take the law as it is, as the people and their elected representatives choose to fashion it. In this way, the American people stay in control of the government.
Some presidents, however, have appointed political judges who twist the law into what they want it to be; some of these judges reach certain decisions to further an ideological agenda. It’s as if the political ends justify the judicial means. Political judges turn the constitutional design on its head by putting the government in control of the American people.
This is one reason, for example, that the federal government has become so powerful at the expense of the states. Judges looked at the Constitution’s description of federal powers and turned them into blank checks.
It’s also how religious freedom, central to the very identity of this country, has become so compromised. The First Amendment was drafted so that the prohibition on an “establishment of religion” would be narrow and the guarantee of the “free exercise of religion” would be broad. Judges have literally inverted the First Amendment by distorting the meaning of those words.
Twice in the last few years, the Supreme Court came within one vote of choking off the Religious Freedom Restoration Act. When I helped draft and pass RFRA in 1993, Congress was united that federal law should provide broad and generous protection to the exercise of religion by people of all faiths. Today, some political interests want a few judges to pick and choose whose exercise of religion matters and whose can be stifled.
The conflict over judicial appointments, then, is really a conflict over judicial power. The confirmation process in the Senate, laid out in the Constitution, reflects a perennial consensus that America needs impartial judges. For more than two centuries, the Senate resorted to time-consuming roll-call votes for the confirmation of only 4 percent of federal judges, and conflicts over individual nominees were rare.
But times have changed. Two-thirds of all judicial confirmations with more than 20 negative votes have occurred in the past two decades, and the Senate has been forced to take roll-call votes on more than 80 percent of nominees who had no opposition at all. Highly qualified nominees, like those approved last week, are now attacked for the very reason they should be approved: because they will be impartial judges who will leave the politics out of judicial decision-making.
In this conflict over judicial appointments, everything that our system of government was designed to provide, including liberty itself, hangs in the balance. Should we fail, American jurisprudence may well descend into nothing more than another avenue for political disputes and conflict. But as shown last week, Republicans in the Senate are prepared to take a stand and assure that impartial, nonpolitical justice prevails.
Orrin Hatch is Utah’s senior senator and the senior member and former chairman of the Senate Judiciary Committee.