Hatch: Keep Election-Year Political Theater Out Of Confirmation Process
Washington, D.C.—Senator Orrin Hatch, R-Utah, the senior member and former chairman of the Senate Judiciary Committee, spoke on the Senate floor today on the the importance of deferring the Supreme Court confirmation process until after the presidential election. In this speech, Hatch focused his remarks on the need to keep election-year political theater out of the process.
That a respectful discussion among attorneys was disrupted by professional activists wielding materials from Organizing for Action—a political arm of the White House and the Democratic National Committee—demonstrates what I’ve been saying all along: considering a nominee in the midst of a presidential election campaign would further inject toxic political theater into an already politicized confirmation process.
The full speech, as prepared for delivery, is below:
Mme. President, I rise today to discuss the vacancy created by the death of Supreme Court Justice Antonin Scalia. Those of us who knew the late Justice well are still mourning the loss of a dear friend, and the nation is feeling the loss of one of the greatest jurists in its history. We will never find a true replacement for Justice Scalia, only a successor to his legacy. And we owe it to the late Justice’s extraordinary legacy of service to ensure that we treat the confirmation of his successor properly.
Mme. President, my friends in the Democratic minority have settled upon one mantra above all others in addressing this vacancy: that the Senate must do its job. While I have no doubt that this talking point has been poll-tested and refined to serve as the most effective political attack possible, the truth is that this point is completely uncontroversial. I have not heard a single one of my Republican colleagues argue that the Senate should not do its job with respect to the Supreme Court vacancy. Where we have a legitimate difference of opinion is how the Senate can best do its job.
Article Two, Section Two of the Constitution divides the appointment process into two distinct roles: the power of the President to nominate, and the power of the Senate to provide its advice and consent. Despite the wild claims of some of my Democratic friends to the contrary, the Constitution does not define how the Senate is to go about its duty to provide advice and consent. It does not dictate that the Senate must hold confirmation hearings or floor votes on the President’s preferred timeline. After all, how could the Constitution provide such instruction if the Judiciary Committee did not come into existence until 27 years after the Senate first convened in 1789? Indeed, the Judiciary Committee only began holding confirmation hearings in the past century, and nominees only began appearing before the Committee regularly in the past 60 years.
In fact, the Constitution prescribes no specific structure or timeline for the confirmation process, and the Constitution’s text and structure as well as longstanding historical practice confirm that the Senate has the authority to shape the confirmation process how it sees fit. In other words, the Senate’s job is to determine the best way to exercise its advice and consent power in each unique situation.
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 only arose when Justice Charles Evans Hughes resigned his seat on the Court to run against incumbent President Woodrow Wilson.
Key Democrats have long expressed strong agreement with the decision to defer the confirmation process in these circumstances. For example, Senator Chuck Schumer, the incoming Democratic leader, argued in July 2007—with a year and a half left in President George W. Bush’s term and with no Supreme Court seat even vacant—that the Senate “should not confirm any Bush nominee to the Supreme Court except in extraordinary circumstances.” And Vice President Joe Biden argued in 1992—when he was Judiciary Committee Chairman—that if a Supreme Court vacancy occurred in that presidential election year, “the Senate Judiciary Committee should seriously consider not scheduling confirmation hearings on the nomination until after the political campaign season is over.”
Past practice and the well-documented past positions of key Democrats certainly support the notion that deferring the confirmation process is an option reasonably available to the Senate in certain circumstances. As for its appropriateness in the present situation, one need only consider how the confirmation process would be further poisoned by election-year politics.
As a member of the Judiciary Committee for nearly four decades, I have witnessed the judicial confirmation process become increasingly divisive and oftentimes downright nasty. First came the campaigns of character assassination waged against Robert Bork and Clarence Thomas. Then came the Senate Democrats unprecedented filibusters of President George W. Bush’s lower-court nominees. Then came the attempt to deny an up-or-down vote on the nomination of Samuel Alito to the Supreme Court—a move supported by then-Senators Obama, Biden, Clinton, Reid, Durbin, Schumer, and Leahy. Finally came the unilateral use of the nuclear option to blow up the filibuster and pack the D.C. Circuit Court of Appeals—widely considered the second most powerful court in the nation—with liberal judges committed to rubberstamping the President’s agenda.
Those that were responsible for every single one of these major escalations in the so-called judicial confirmation wars have no credibility to lecture anyone on what a proper confirmation process should look like in this situation. And for those of us who have fought against the breakdown of the confirmation process, the prospect of considering a nomination in the middle of what may be the nastiest election of my lifetime could only further damage the long-term prospects of a healthy confirmation process. Deferring the process is in the best interests of the Senate, the judiciary, and the country.
The tenor of the debate since Justice Scalia’s passing has only confirmed how right we were to take a stand to defer the process until after the election. For example, a speech I delivered on Friday was briefly disrupted by protestors chanting do your job, ironically just as I began to explain why our approach to this vacancy is the best way the Senate can indeed do its job. Now, I don’t mind protesters speaking their minds, but I don’t appreciate when they try to prevent others from expressing differing views. That a respectful discussion among attorneys was disrupted by professional activists wielding materials from Organizing for Action—a political arm of the White House and the Democratic National Committee—demonstrates what I’ve been saying all along: considering a nominee in the midst of a presidential election campaign would further inject toxic political theater into an already politicized confirmation process. I would also like to submit for the record a copy of an article from Politico detailing the extensive political coordination between the White House and the parent organization of these protestors that risks turning what should be serious consideration of a weighty lifetime appointment into an election-year political circus.
Furthermore, the Minority Leader has turned his daily remarks on the floor into constant diatribes against the Chairman of the Judiciary Committee. These rank among the nastiest and most personal attacks I have heard on the Senate floor in my nearly four decades in this body. Having myself served as Chairman of the Judiciary Committee for more than eight years, I know that the position is no stranger to controversy and political hardball. But the vicious and unfair attacks on Senator Grassley’s independence and work ethic have gone too far.
I have had the privilege of serving with Senator Grassley for more than 35 years. I know no one more committed to doing his job. Senator Grassley has not missed a vote in a record-setting 27 years—when he was home in Iowa touring the awful damage of the Great Flood of 1993—and yet still manages to hold town-hall meetings in all 99 of his state’s counties every year. He sets the gold standard of service in the Senate. If anyone knows his own mind, it is Senator Grassley. Each of us is entitled to our own opinions on issues that come before this body, even controversial ones, but I want to condemn in the strongest possible terms the notion that a difference of opinion with Senate Democrats means that Senator Grassley is compromising his own integrity or the independence of the Judiciary Committee he leads. These attacks come very close to impugning his character, and that sort of behavior is beneath the dignity of this body.
Mme. President, the Minority Leader came to the floor earlier this week to seize on the comments of the senior Senator from Texas to manufacture another cheap political attack on the Republican majority. In those comments, Senator Cornyn had speculated that the nasty political environment could unfortunately turn any Supreme Court nominee into a political piñata. The Minority Leader’s comments are a total mischaracterization of Senator Cornyn’s record of fairness toward nominees of both parties and of Senate Republicans’ intentions in this situation; after all, the whole point of deferring the nomination and confirmation process is to limit the mistreatment of any nominee, as Senator Cornyn suggested in his remarks. This unfounded accusation is also deeply ironic coming from the party that stooped to the character assassination of Robert Bork and Clarence Thomas.
Mme. President, if there is anyone who has been treated like a piñata in this debate, it has been Senator Grassley. Now, Chuck Grassley is as tough as they come, and I have every confidence that he’ll weather these nasty, unfair attacks. But if these scorched-earth political tactics reflect the length that some in the Democratic minority are prepared to go in an election-year confirmation battle, there can be no better illustration of why we should defer this process.
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Hatch Commends Utah Legislature for Funding Hill AFB Software Facility
Washington, D.C.—Senator Orrin Hatch, R-Utah, the senior Republican in the United States Senate, congratulated the Utah State Legislature today for funding a new software facility at Hill Air Force Base in Utah’s annual budget.
"I commend the Utah State Legislature for working to provide critical funding for a new software facility at Hill Air Force Base. This facility will not only bring jobs to Utah and positively impact STEM initiatives in our state; it will also strengthen our national security by allowing the skilled workforce at Hill to develop and refine software for key weapons programs, such as the F-35. This represents a sound investment in our military’s future—an investment that will pay dividends for Utah’s families for decades to come. I extend my gratitude to the men and women of Hill Air Force Base and our state lawmakers for their superlative work on this issue.
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Sen. Orrin Hatch: Senate Should not Hold Hearings for Obama SCOTUS Nominee
By Orrin Hatch
http://time.com/4259954/obama-scotus-nominee/
Like many Americans, I mourn deeply the loss of Justice Antonin Scalia. He was a giant of the law and a dear friend. He transformed the trajectory of our nation’s highest court and helped scale back years of unbridled, unprincipled judicial activism by liberal justices intent on imposing their views on the American people.
Justice Scalia’s passing comes during a particularly contentious time in our nation’s history. The country is in the midst of a volatile, highly charged presidential election. Accusations of dishonesty and hypocrisy fly with abandon. No charge, it seems, is too base to attract media attention. The current political climate is as toxic and as polarized as I have ever seen.
For this reason, I believe firmly that it would be best for the Court, and the nation, to select Justice Scalia’s replacement after the presidential election. Adding a Supreme Court nomination to the current polarized climate would serve only to undermine the Court’s independence and drag the Court into the caustic atmosphere of the 2016 presidential race.
Throughout my 40 years in Washington, I have sought to prevent the courts from becoming a political football. I have criticized attempts by Democrats to politicize the courts and to impose litmus tests on judicial nominees. My concern has been with the Court as an institution, and I have sought to protect the judiciary from improper political pressure.
There is simply no way that a new justice can be confirmed in the current election-year climate without his or her nomination becoming a political firestorm. Any hearings or debates on the nomination will become little more than an opportunity for both sides to air grievances and to engage in a proxy war over the presidential campaign. Both parties will inevitably use the nomination to try to position their side favorably for November and to score political points against opponents.
These are not the conditions for a fair and considered appraisal of a nominee’s qualifications. The mantra on both sides would be to win at all costs and to bloody the other side as much as possible in the process. Far better to wait until after the impending election, when cooler heads will have at least some opportunity to prevail.
Indeed, already there’s yelling and shouting about a potential nomination, with Democrats calling Republicans radicals and extremists for saying we should wait until after the election to fill Justice Scalia’s seat. Such attacks would become only more vitriolic were the Senate to take up a nomination before the election.
There has also been a great deal of obfuscation and misinformation about the Senate’s role in the confirmation process. Supporters of the President have asserted that President Obama has a “right” to fill Justice Scalia’s seat and that the Senate’s “job” is to hold hearings and vote on whomever he sends up. This is nothing more than political posturing.
To begin with, the President has no “right” to appoint nominees to the Supreme Court. The Constitution gives the President the power to nominate, but gives the Senate an equal power to confirm, or not, as it sees fit. Only with the Senate’s consent may the President fill a seat on the Supreme Court. To say the President has a “right” to fill a Supreme Court vacancy now, or at any point in time, is constitutionally illiterate.
Nor does the Constitution require the Senate to hold a hearing on a nominee, or even to take any action at all. The Senate may exercise its constitutional prerogative to reject a presidential nomination in whatever manner it sees fit. For example, although in recent years it’s become customary to hold hearings on Supreme Court nominations, for the first 130 years of our nation’s history the Senate never held a hearing on any Supreme Court nominee. And the Senate has chosen on multiple occasions to allow a nomination to expire rather than act on it. In one case, Congress even abolished a Supreme Court seat rather than confirm the President’s nominee. Although no two situations are exactly alike, these examples make clear that the Senate may withhold its consent in a variety of ways.
It’s been more than 100 years since a Supreme Court justice died in office during a presidential election year. It’s been 130 years since a justice died in office in a presidential election year during a time of divided government. And a justice has never died in office this late in a term-limited President’s last year, when voting on the President’s successor has already begun.
In light of the highly polarized, corrosive nature of this year’s presidential race, coupled with the fact that Americans have already begun voting on President Obama’s replacement, the right course of action is to wait until after this year’s election to consider a nominee to fill Justice Scalia’s seat.
Let the American people decide whether they want Hillary Clinton or the Republican nominee to select the next Supreme Court justice. President Obama will never again face voters, yet whoever is chosen to succeed Justice Scalia will likely serve 30 years or more.
Let a new President with a clear mandate, not a term-limited President with less than one year left in office who faced a historic rebuke by voters in the last midterm election, make this crucial decision. Don’t make the Supreme Court another victim of this year’s toxic presidential campaign. Too much is at stake.
