My Advice to Senate Democrats: Do Your Job
By Orrin Hatch
In an effort to attack Republicans fighting to preserve the integrity of the Supreme Court, Democrats have been repeating the same senseless slogan for weeks: “Do your job.” This sound bite is catchy, quotable, and perfectly engineered for internet activism; it’s also entirely disingenuous.
Rarely have so few words been so misleading for so many. This tired tagline is simply a calculated attempt at political misdirection—one designed to hoodwink the American people into thinking that the Senate is nothing more than a rubberstamp in the Supreme Court confirmation process.
“Do your job.” Against all logic, this mindless mantra has become the clarion call of liberals bent on filling the Supreme Court vacancy in the midst of the most politically-charged presidential election in recent memory. Democratic operatives concocted this slogan after my colleagues and I took a principled stance to wait until after the presidential election to consider a Supreme Court nominee.
The logic of the Republican position is simple: holding hearings now would poison an already-contentious confirmation process with the worst of election-year politics. For the good of the nominee and to help preserve the integrity of the Court, the Senate should consider a Supreme Court nomination after the presidential election. By so doing, we can also give the American people a voice in the direction of our nation’s highest court.
Rather than engaging Republicans with a meaningful counterargument, Democrats have responded with a meaningless catchphrase: “Do your job.” According to progressives, it seems that “doing your job” entails confirming whomever President Obama nominates to the Supreme Court, regardless of the circumstances.
Never mind that, in years past, Democratic leaders—including Vice President Biden, Minority Leader Reid, Senator Schumer, and Senator Leahy—have themselves warned against considering a Supreme Court nominee in the last year of a President’s term.
Never mind that considering a nominee in the middle of a presidential election breaks with decades of established precedent.
Never mind that even holding a hearing in the current partisan environment could permanently damage the judicial confirmation process beyond repair.
Never mind that the United States Constitution does not require the Senate to confirm any presidential nominee.
Never mind the facts, and the Democratic argument might actually make sense.
I, however, am not ignorant of the facts, nor will I be swayed by a three-word hashtag that purposely misrepresents the Senate’s role in confirming a Supreme Court nominee.
I wish to be very clear about what exactly that role is: Article II of the Constitution grants the President the power to nominate a candidate to the Supreme Court—a power President Obama exercised this week by nominating Judge Merrick Garland. But the Constitution also makes the Senate a coequal partner in the confirmation process by granting the upper chamber the power to provide its advice and decide whether to grant or withhold its consent to the President’s nominee. This week, I stood with a majority of my Senate colleagues in concluding that the best way to exercise our advice-and-consent power is to conduct the confirmation process after the presidential election.
Liberal lawmakers demanding that Republicans “do [their] job” are essentially claiming that the Senate has some sort of constitutional obligation to proceed with the confirmation process. Nothing could be further from the truth. Nowhere does Article II stipulate that the Senate is required to hold a hearing on a nominee. Either Senate Democrats are wilfully misreading the Constitution or they are deliberately distorting its meaning to advance their own partisan agenda. Either way, the accusation that Senate Republicans are not doing their job by waiting to consider a nominee is entirely without merit.
When I was elected to the Senate, I took a solemn oath to “support and defend the Constitution.” In doing so, I intend to exercise responsibly the advice-and-consent power by keeping politics out of the judicial branch in a presidential election year. That’s my job, and I’m intent on doing it as best I can. To Democrats who would do otherwise—those who would politicize the Supreme Court and make a public spectacle out of the confirmation process—I make only one request: Do your job. Honor your previous statements and help us maintain the integrity of our nation’s highest court by waiting until after the presidential election to consider a nominee.
Hatch: Democrats Are SCOTUS Hypocrites
By Orrin Hatch
http://time.com/4265419/orrin-hatch-supreme-court/
It was a presidential election year, with primary voting well underway. The President and Senate majority were of different parties. A senior Judiciary Committee member explained in interviews and a lengthy speech how a Supreme Court vacancy should be handled under those circumstances.
The election campaign was already bitter and the judicial confirmation process had become increasingly divisive. Combining the two, he said, would ensure that partisan bickering and political posturing would overwhelm everything else. He advised that the entire appointment process be deferred until after the election season was over, for the good of any nominee and the integrity of the Court.
If that scenario were a Jeopardy answer, the question would be not “who is Chuck Grassley in 2016” but “who is Joe Biden in 1992.”
The same circumstances about which Biden spoke in 1992 obviously exist today. Biden’s primary concern, however, was the state of the judicial confirmation process. Democrats were responsible for its condition in 1992, having engaged in character assassination of nominees like Robert Bork and Clarence Thomas. They have also been responsible for each escalation of the confirmation conflict since then, engaging in unprecedented filibusters and even breaking Senate rules to achieve their preferred ends.
Justice Scalia’s death invites reflection about his modest approach to the two tasks of federal judges: interpreting written laws such as statutes and the Constitution and applying that interpretation to the facts of individual cases. His Judiciary Committee hearing lasted just two days and the Senate unanimously confirmed his nomination on Constitution Day 1986.
That changed in less than a year, after Democrats won the Senate majority in the 1986 election. Their new strategy, driven by an overtly political judicial job description and utilizing manipulative and underhanded tactics, succeeded in defeating the nomination of Robert Bork in October 1987.
Democrats were also responsible for changing the procedural rules and practices. In 1992, the same year he complained about the state of the confirmation process, Chairman Biden denied a hearing to more than 50 of President George H.W. Bush’s judicial nominees. The New York Times confirmed that this was a deliberate move to preserve judicial vacancies if Bill Clinton was elected President.
Within weeks of the second President Bush’s inauguration, Senate Democratic Leader Tom Daschle said that they would use “whatever means necessary” to defeat unacceptable judicial nominees. In May 2001, Senate Democrats huddled with left-wing groups and liberal academics to, as the New York Times described it, “change the ground rules” of the confirmation process.
The new ground rules took two forms. First, Democrats took steps to make confirming judges more time-consuming. Under Senate rules, pending nominations expire and are returned to the President when the Senate adjourns for more than 30 days. While that rule is routinely waived when the Senate takes its August break, Democrats in 2001 forced more than 40 judicial nominations to expire, including some that had been received only the day before.
Traditionally, time-consuming roll call votes had been reserved for confirmation of disputed nominees, while unopposed nominees were confirmed by unanimous consent or voice votes. Between 1789 and 2000, fewer than four percent of judicial nominations were confirmed by roll call vote and most that did receive such a vote had opposition. During the Bush administration, 59 percent of judicial nominees were confirmed by a time-consuming series of roll call votes even thought almost none of them had opposition.
In addition to making confirmations more difficult, Democrats launched a new weapon for preventing them altogether: the nomination filibuster. Since the Senate must end debate on a nomination before it can vote on confirmation, a filibuster occurs when a motion to end debate receives fewer than the 60 votes required under Senate rules.
Before the George W. Bush administration, the only judicial nominee defeated after a filibuster did not have majority support. During the Bush administration, Democrats forced more than twice as many cloture votes on judicial nominations than in previous history combined. Supported by their liberal allies, they led 20 filibusters of majority-supported judicial nominees that kept several nominees from ever being confirmed.
Beginning in 2007, like Chairman Biden before him, Judiciary Committee Chairman Patrick Leahy denied a hearing to dozens of Bush judicial nominees. President Obama was elected that November and was able to fill those positions.
And then in November 2013, after filibusters of only six Obama judicial nominees, Democrats used a discredited parliamentary maneuver to reinterpret Senate rules, effectively abolishing the filibuster for all but Supreme Court nominees. They eliminated the very nomination filibuster that they had used so aggressively to defeat dozens of Republican nominees.
This is part of, as Paul Harvey used to say, the rest of the story. The judicial confirmation process had become so politicized by 1992 that Chairman Biden recommended its deferral if a Supreme Court vacancy occurred in a presidential election season. Since then, Democrats have hastened the degradation of the process in unprecedented ways. They cannot now complain that the case for deferring consideration of a Supreme Court is stronger than ever.
---------------------------------
The Senate's Job Is to Protect the Supreme Court
By Orrin G. Hatch
http://www.bloombergview.com/articles/2016-03-22/senate-s-job-is-to-protect-the-supreme-court
Recently, I was invited by a well-respected legal organization to speak at their monthly lunch meeting. As a group of 200 Washington-area lawyers sat eating in a packed Chinatown restaurant, I began to share my thoughts regarding the current vacancy on the Supreme Court caused by the untimely death of my friend, Justice Antonin Scalia.
Midway through my remarks, a group of protesters rose from their seats near the front of the room and began shouting “Do your Job!” As these disrupters stood chanting and holding professionally printed signs, it reinforced my belief that by deferring the confirmation process until after this toxic election season, the Senate is doing exactly what it should: We are doing our job.
Now that a majority of states have held presidential primaries, and as this hostile election cycle turns from those contests to general election, organized disruptions of any thoughtful discussion about the Supreme Court will only intensify.
Make no mistake: These protesters are not interested in seeing the Senate take seriously its constitutional duty to provide advice about, and determine whether to give or withhold consent to, a consequential Supreme Court nomination. They care little about the Senate operating as a check and balance to the executive branch and instead simply insist that the Republican-led Senate do what progressive activists want and rubber-stamp a presidential appointment.
Liberals want above all to shift the balance of the Supreme Court to the left, a move that will have dramatic consequences for the lives and freedoms of all Americans for generations. By means of this lifetime judicial appointment, Democrats want to reshape the Supreme Court to reach different outcomes on issues ranging from individual gun rights to religious liberty to affirmative action to the very system of constitutional checks and balances designed to limit the overreach of an ever-expanding administrative state.
Among the most important ways that our nation's founders sought to restrain executive power was to entrust the Senate with the advice-and-consent power for presidential nominations -- including nominations to the Supreme Court. As the president and his political allies lecture the Senate on how it should fulfill this constitutional responsibility, it seems clear that the Senate must seek to protect the judicial branch from ever-increasing partisan and political influences.
The legitimacy of the Supreme Court rests on the public’s perception that our judiciary is fair, impartial and not susceptible to the pressures of partisan politics. By seeking to thrust a confirmation battle into the middle of a particularly bitter presidential election, President Barack Obama carelessly risks further polarizing and politicizing the confirmation process, and further damaging the integrity and public standing of the Supreme Court as an institution.
Perhaps Vice President Joe Biden put it best while serving as S enate Judiciary Committee chairman in 1992. He said, “Senate consideration of a nominee under these circumstances is not fair to the president, to the nominee, or to the Senate itself….[W]here the nation should be treated to a consideration of constitutional philosophy, all it will get in such circumstances is partisan bickering and political posturing from both parties and from both ends of Pennsylvania Avenue.”
I agree with what the vice president said then, that “the Senate Judiciary Committee should seriously consider not scheduling confirmation hearings on the nomination until after the political campaign season is over.” Throughout the years, responsible elected officials of both parties have rightly concluded that deferring the confirmation process until after a politically charged presidential election is in the best interest of fair treatment for a nominee and preserving the dignity of the Supreme Court.
In the weeks and months to come, we can expect professional political activists on the left to ramp up efforts to organize protests and media campaigns, and persistently badger Republican senators to “do their job” by rubber-stamping a nominee in the midst of political turmoil. This partisan campaign by the left is only more evidence that the best way for the Senate to do its job in such a caustic environment is to insulate the Supreme Court from polarizing political gamesmanship.
The liberal left is seeking to bully the Republican-led Senate into ignoring its constitutional responsibilities and further destroying our nation's delicate system of checks and balances. Reflecting on the Senate’s solemn duty with respect to Supreme Court nominations, I am more resolved than ever to move forward with the confirmation process only after this toxic election
season is over.
------------------------------------------
Hatch and Whitehouse’s Ensuring Patient Access and Effective Drug Enforcement Act Passes Senate
Washington, D.C.—Today, the Senate unanimously passed the Ensuring Patient Access and Effective Drug Enforcement Act, to help ensure that prescription drugs land in the hands of patients and not those who would abuse them. The bill, authored by Senators Orrin Hatch (R-UT) and Sheldon Whitehouse (D-RI), would clarify the standards companies must meet when protecting prescription drugs from being diverted toward improper uses and help protect patients from dangerous disruptions in the production and delivery of their prescription drugs. The bill now awaits action in the House.
“Prescription drug abuse is a complicated and troubling trend that requires better coordination between drug manufacturers and law enforcement,” Hatch said. “The fact that prescription drugs can be abused should not prevent patients from receiving the medications they need. This bill takes a balanced approach to the problem of prescription drug abuse by clarifying penalties for manufacturing or dispensing outside approved procedures while helping to ensure that supply chains to legitimate users remain intact. It will encourage companies to notify law enforcement proactively when they discover potential diversion and to work with officials to help keep these drugs in the right hands.”
“When used correctly, prescription drugs can provide patients with lifesaving treatments. However, they can be tremendously harmful when abused,” said Whitehouse. “We can avoid some of that harm if we can keep prescription drugs from being diverted into the wrong hands. By offering better guidance for companies in the prescription drug supply chain, and by promoting better communication between those companies and federal regulators, this bill can help fight drug abuse and ensure that patients have access to their prescriptions. I was very glad to see it pass unanimously today.”
Currently, the Controlled Substances Act (CSA) does not make clear which factors the Drug Enforcement Agency (DEA) should consider when deciding whether to register a company applying to manufacture or distribute prescription drugs. Hatch and Whitehouse’s legislation directs the DEA to use findings Congress compiled while drafting the CSA to define those factors. The bill also describes the circumstances under which the Attorney General can suspend a company’s registration. Finally, it allows companies that violate the CSA an opportunity to work with the DEA to correct the violation before having their registration revoked.
A summary of key provisions of the bill can be found here.
