Hatch, Senate Republican High-Tech Task Force Hosts Q&A with Ted Olson on Apple Encryption Debate
Washington, D.C.—On Wednesday afternoon, Senator Orrin Hatch, the Chairman of the Senate Republican High-Tech Task Force, convened a special question-and-answer session with Ted Olson, the leader of Apple’s legal team in the recent litigation over the government’s demand to access the data on an iPhone used by one of the San Bernardino terrorists. All members of the Senate were invited to attend the off-the-record briefing.
“Technology is advancing faster than ever expected, so lawmakers must consider the legal and policy issues these advancements create,” Hatch said. “Right now, Apple is in the middle of the policy debate over encryption, and I appreciate the company’s willingness to engage in a public debate about how best to balance the needs of law enforcement agencies with those of our technology companies. These are not easy issues, and it will take input from every side to develop a viable solution.”
(Click here for High Quality Photos—Via DropBox)
Hatch: “Democrats are peddling false claims about the Constitution and the Supreme Court vacancy”
“Democrats and their left-wing allies are peddling false claims that the Constitution requires the Senate to conduct the confirmation process now for the President’s nominee to the Scalia vacancy. They may say these falsehoods as often as they wish; however, they are still false.”
Washington, D.C.—Senator Orrin Hatch, R-Utah, the longest-serving member and former Chairman of the Senate Judiciary Committee, took to the Senate floor today to reaffirm the independent role of the Senate in the Supreme Court confirmation process. In defending the decision to consider a Supreme Court nominee after the election season, Hatch discredited several false claims made by President Obama and his supporters about the Senate’s role in filling the current vacancy.
“I have yet to hear an argument from the other side regarding the Scalia vacancy that is not contradicted by present facts, by their own past actions, or by both,” Hatch said. “The Constitution assigns to this body the responsibility of advice and consent as an important check on the President’s power to appoint. Advice and consent begins with a judgment about the best way to exercise the Senate's power in each situation. We have done so in different ways, at different times, under different circumstances.”
Mr. President, I rise to speak about the conflict over the Supreme Court vacancy created by the untimely death of Justice Antonin Scalia. This conflict actually has two dimensions, one focusing on the nominee and the second focusing on the confirmation process.
America’s founders established a system of government that preserves liberty by limiting government, including a defined role for judges. Three of America’s founders provided principles helping to define that judicial role. James Wilson signed the Declaration of Independence, helped draft the Constitution, and was one of the six original Supreme Court Justices appointed by President George Washington. He explained our system of government by saying that “here, the people are the masters of the government.”
The second principle is from President Washington himself, who said in his farewell address that the basis of our system of government is that authority to control the Constitution belongs to the people.
Alexander Hamilton served in the Continental Congress, helped draft the Constitution, and became the first Secretary of the Treasury. He wrote 51 of the 85 installments of The Federalist Papers, the single most important reference for understanding the Constitution. In The Federalist No. 78, he wrote that the judiciary is the weakest and least dangerous branch because judges exercise judgment but not will.
These three principles outline the proper role for judges in our system of government. The people are masters of the government, they alone have authority to control the Constitution, and judges may exercise judgment but not will. Our system of government, and the liberty it makes possible, requires judges who leave control of the law in the hands of the people.
The conflict over the appointment of judges is really a conflict over the power of judges, a conflict over whether this should still be the proper judicial job description. Those whose political agenda fares poorly with the American people and their elected representatives want a very different kind of judge. They want willful judges who will impose their political agenda by manipulating statutes or the Constitution.
This is the first dimension of the conflict over filling the Scalia vacancy. I have spoken and written extensively about how the Senate owes the president some deference regarding nominees who are qualified by both legal experience and judicial philosophy. Those considerations are relevant when the confirmation process takes place.
The second dimension in the conflict over filling the Scalia vacancy, however, focuses on the process rather than the nominee. When and how the confirmation process should occur is rarely a question at all, but it is a serious one under the circumstances we face today. Ignoring the integrity of the process, acting as if the ends always justify the means, would be a serious dereliction of the Senate’s duty.
The President has the constitutional power to nominate judges but he cannot appoint them without the advice and consent of the Senate. The Constitution, however, does not tell either the President or the Senate how to exercise their powers. Deciding when and how to conduct the confirmation process is as valid an exercise of the Senate’s advice and consent power as is taking a final confirmation vote at the end of that process.
Our late colleague Daniel Patrick Moynihan of New York once said that everyone is entitled to his own opinion, but not his own facts. The Minority Leader recently offered a similar axiom when he said that “no matter how many times you tell a falsehood, it is still false.”
When it comes to falsehoods, Democrats and their liberal allies are telling some real whoppers. The Minority Leader, for example, has said that the Senate’s obligation to hold a hearing and a floor vote for President Obama’s nominee is “in the Constitution.” He has made that claim in different ways here on the Senate floor more than 40 times.
I understand that Democrats want the Senate to confirm the President’s nominee to the Scalia vacancy, but I cannot understand why they would put all their eggs in this completely fictional basket. As falsehoods go, this one is especially easy to expose because the Constitution obviously says no such thing. This is why the Washington Post Fact Checker called the Democrats’ claim that the Constitution requires Senate consideration a politically convenient fairy tale.
One of the reasons that the Constitution says nothing about Judiciary Committee hearings is that the committee was not created until 29 years after the Constitution was written. In fact, the committee’s practice of nominees regularly appearing in public hearings did not begin until the 1950s. During the 110th Congress, Chairman Patrick Leahy denied a hearing to dozens of President George W. Bush’s judicial nominees. If the Minority Leader is right that the Constitution requires such a hearing, then Chairman Leahy was guilty of serially violating the Constitution.
Between 2003 and 2007, Senators Patrick Leahy, Charles Schumer, and Richard Durbin voted dozens of times to deny floor votes to Republican judicial nominees. So did Senators Hillary Clinton, Joseph Biden, and John Kerry. If the Minority Leader is right that the Constitution requires a floor vote for every nominee, then these Senators were guilty of deliberately attempting to violate the Constitution over and over again. So was the Minority Leader himself, because he voted 25 times to deny the very floor votes that today he claims the Constitution requires.
The Constitution does not require committee hearings, and it does not require floor votes. The Constitution leaves to the Senate the judgment about when and how to conduct the confirmation process in each situation. Republicans have made that judgment by deciding that the confirmation process for filling the Scalia vacancy should be deferred until after the presidential election season is over. We are following the recommendation of Vice President Joe Biden in 1992, when he chaired the Judiciary Committee. The circumstances compelling his recommendation to defer the confirmation process exist, in equal or greater measure, today.
Neither Democrats nor their left-wing allies have even attempted to argue that the 1992 Biden speech and his recommendation do not apply today. Instead, they have had three different reactions. First, some have simply dismissed it as not worth taking seriously. President Obama, for example, responded by saying: “we know Senators say stuff all the time.”
Others have complained that Republicans are misconstruing that speech or somehow taking it out of context. Just as anyone can test the Minority Leader’s claim about the Constitution by reading the Constitution, however, they can test our discussion of Chairman Biden’s 1992 speech by reading the speech. The Washington Post read it, and reported this on February 23:
“Biden’s remarks were especially pointed, voluminous and relevant to the current situation. Embedded in the roughly 20,000 words he delivered on the Senate floor were rebuttals to virtually every point Democrats have brought forth…to argue for the consideration of Obama’s nominee.”
In his 1992 speech, Chairman Biden addressed how the confirmation process should be conducted in two different scenarios. First, he spoke about a Supreme Court vacancy in a presidential election year. This was his recommendation:
“It would be our pragmatic conclusion that once the political season is under way, and it is, action on a Supreme Court nomination must be put off until after the election campaign is over.”
Second, Chairman Biden separately discussed how the confirmation process “might be changed in the next administration, whether it is a Democrat or a Republican.” He used the phrase the next administration no less than four times. This was his recommendation:
“If the President consults and cooperates with the Senate or moderates his selections absent consultation, then his nominees may enjoy my support….But if he does not, as is the President’s right, then I will oppose his future nominees as is my right.”
Two separate scenarios, two separate recommendations. The first scenario involved a Supreme Court vacancy in a presidential election year like 1992 and the recommendation involved the entire appointment process. Those circumstances and that recommendation apply fully today.
The second scenario Chairman Biden addressed involved the next administration, outside a presidential election year, and his recommendation involved his personal support or opposition. Those circumstances and that recommendation do not apply today.
I understand that Chairman Biden’s recommendation for deferring the confirmation process in a presidential election year is a very inconvenient truth for his party today. I really do. The only ones misconstruing that speech today, however, are those trying to create confusion where none exists by conflating these two separate scenarios and recommendations.
The third reaction to Chairman Biden’s 1992 speech is to pretend that he said something he simply did not say. I have heard the claim, for example, that Chairman Biden would have gone forward with the confirmation process in 1992 if the President consulted the Senate before choosing a nominee. Let me once again quote the Minority Leader: “no matter how many times you tell a falsehood, it is still false.” Read the speech, Chairman Biden said no such thing.
I also want to comment on the President’s recent remarks about the Scalia vacancy at the University of Chicago. He said, for example, that “there has not been a circumstance in which a Republican President’s appointee did not get a hearing.” The Senate’s power of advice and consent, of course, applies across the board. If the Constitution requires hearings and floor votes for some nominees, it requires them for all nominees.
Last month, the Congressional Research Service confirmed in a new memo that during the 102nd Congress, when Democrats controlled the Senate, 52 Republican judicial nominees never got a hearing. Vice President Biden chaired the committee and denied those hearings. In September 1992, the New York Times reported on page one that this was part of a deliberate strategy to keep judicial vacancies open in the hope that Bill Clinton would be elected.
The President also said that there has not been a circumstance when a Republican President’s nominee did not get a floor vote. Obviously, none of the dozens of nominees denied a hearing ever got a floor vote. The 52 Republican judicial nominees I just mentioned were not only denied a hearing, they were never confirmed at all. When the President served in this body, he voted to deny floor votes to multiple Republican judicial nominees. In fact, he has the distinction of being the only President ever to have voted to filibuster a Supreme Court nominee.
The President was a Senator during the 110th Congress, when Chairman Leahy denied a hearing to dozens of Republican nominees. I could find no record that then-Senator Obama objected in any way that these nominees were being denied full consideration.
The President also said that the increasing use of the filibuster to defeat nominees is unacceptable. Democrats first used the filibuster to defeat a majority-supported judicial nominee in 2003. They led nearly two dozen filibusters during the 108th Congress alone, preventing one appeals court nominee after another from being confirmed. President Obama should know this because, as I mentioned, he participated in and supported this filibuster campaign. The President should also know that filibusters of judicial nominees declined by 65 percent after he took office in January 2009. That did not matter to Democrats, who in November 2013 abolished the very filibusters they had used so aggressively.
The President also expressed concern that an increasingly partisan confirmation process would erode the judiciary’s institutional integrity and that the American people will lose confidence that courts can fairly decide cases. I submit that the kind of judge a President advocates has a much bigger impact on the American people’s view of the courts.
When he was a Senator, the President said that judges decide cases based on their personal views, core concerns, and what is in their hearts. When he ran for president, he told Planned Parenthood that he would appoint judges who have empathy for certain groups. As President, he has nominated men and women who share this politicized, activist approach, believing that judges may make the Constitution conform to current social practices and evolving cultural norms. Our fellow citizens, I think, can easily see that relying on personal empathy and personal concerns is the opposite of impartiality.
Since President Obama took office, the percentage of Americans disapproving of the way the Supreme Court is handling its job has risen by more than 20 points and the percentage saying the Court is too liberal has risen steadily. Three-quarters of Americans now believe that Supreme Court Justices decide cases based on their personal or political views, even though most Americans think they should not do so. The kind of judge that President Obama and other liberals favor has much more to do with such trends than how we handle some procedural matters within the United States Senate.
Finally, I want to respond to the Minority Leader’s recent attack on the Judiciary Committee and its distinguished chairman, Senator Grassley. The Minority Leader made the bizarre claim that Chairman Grassley “forced his committee members to sign loyalty oaths.” I first thought that I must have heard wrong. That statement is completely detached from reality and, I thought, no Senator would utter something so strange on the Senate floor. But there it is in the Congressional Record.
The Minority Leader may be referring to the letter, dated February 23, signed by the Republican members of the Judiciary Committee affirming that there will be no hearing for any nominee from President Obama for the Scalia vacancy. The chairman did not force anyone to sign anything. It may come as a surprise to the Minority Leader, but we sincerely and freely came to the conclusion that the confirmation process should be deferred.
But if the Minority Leader really wants to characterize Senators acting together as evidence of a “loyalty oath,” then I have another example for everyone to consider. When Democrats led 20 filibusters of President George W. Bush’s judicial nominees during the 108th Congress, not a single Democrat voted even once to end debate. Every one of the 868 total votes for those filibusters was cast by a Democrat, 20 of them by the Minority Leader himself.
Now that’s loyalty.
Mr. President, I have yet to hear an argument from the other side regarding the Scalia vacancy that is not contradicted by present facts, by their own past actions, or both. The Constitution assigns to this body the responsibility of advice and consent as an important check on the President’s power to appoint. Advice and consent begins with a judgment about the best way to exercise that power in each situation. We have done so in different ways, at different times, under different circumstances.
Democrats and their left-wing allies are peddling the false claim that the Constitution requires the Senate to conduct the confirmation process now for the President’s nominee to the Scalia vacancy. They are, of course, free to claim that the Constitution requires today the very hearings and floor votes that they denied to Republican nominees in the past. They may say those falsehoods as often as they wish, however, but they are still false.
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Senators Hatch, Coons applaud House Committee passage of Defend Trade Secrets Act
Senate unanimously passed Hatch-Coons Defend Trade Secrets Act earlier this month, White House supports legislation
Theft of trade secrets costs U.S. businesses hundreds of billions of dollars each year
WASHINGTON – U.S. Senators Orrin Hatch, R-Utah, and Chris Coons, D-Del., both members of the Senate Judiciary Committee, today applauded the House Judiciary Committee’s passage of the DefendTrade Secrets Act. The bill is now ready for a vote by the full House. The Senate version of the bill, introduced by Coons and Hatch, passed the Senate unanimously earlier this month.
“Today’s vote in the House Judiciary Committee moves the Defend Trade Secrets Act one step closer to becoming law, and providing critical protections U.S. businesses need to compete in today’s innovation economy. I thank Chairman Bob Goodlatte, Representative Doug Collins, and Representative Jerrold Nadler for their good work in advancing this legislation in the House of Representatives,” said Senator Hatch.
“I applaud the House Judiciary Committee for coming together to pass the Defend Trade Secrets Act and further demonstrate the importance of trade secrets legal protection,” said Senator Coons. “After today, trade secrets are one step closer to enjoying critical federal legal protections, which other forms of intellectual property already enjoy. I look forward to seeing this legislation move to the House floor with strong, continued bipartisan support, and it is my hope that in the coming weeks, President Obama will be able to sign the Defend Trade Secrets Act into law.”
Senator Hatch spoke about what the Defend Trade Secrets Act would mean for Utah in a video earlier this month.
Statements of Support for the Defend Trade Secrets Act
The Intellectual Property Owners Association-- [LINK]
This legislation was developed in the spirit of collaboration and consensus-building. We applaud its authors, Sens. Orrin Hatch, R-Utah, and Chris Coons, D-Del., and Reps. Doug Collins, R-Ga., and Jerrold Nadler, D-N.Y., for taking time to consider and address various industries' concerns, and we thank the bill's co-sponsors for their strong leadership, particularly in the current climate of political divisiveness.
The DTSA represents a valuable tool to remedy trade secret theft. The current legal tools available are inefficient and inconsistent with all other areas of intellectual property law, where federal civil remedies exist. Current federal law in this area, covered by the Economic Espionage Act, is limited. Though the FBI and Department of Justice can use this law, they have limited resources and numerous priorities and are not able to pursue all trade secret thefts. Likewise, state trade secret laws are not well-suited to respond to the movement of trade secrets across state and international borders or to act swiftly to preserve evidence and protect trade secrets from being further divulged.
National Association of Manufacturers-- [LINK]
Trade secrets are vital to the competitiveness of companies throughout our economy, and the threat to these innovations is becoming more serious and more complex. By creating a strong, uniform body of trade secrets law nationwide, the DTSA ensures that our laws keep pace.
Congress should move quickly to pass this important legislation because strong trade secrets protection is critical to the American economy and to manufacturers’ competitive advantage in the global economy. The DTSA encourages investment in cutting-edge research and development and will have an immediate, positive impact on our innovative sector, ultimately creating jobs and opportunity in manufacturing in the United States.
U.S. Chamber of Commerce--[LINK]
American innovation has brought consumers across the globe many of the cutting edge products and technologies that have, quite literally, changed the world. From life-saving medicines to computer software to incredibly efficient ways to generate energy, American companies are at the forefront of the “innovation economy” and the creators of millions of domestic jobs.
In an increasingly competitive global marketplace, it is critical that the right tools are in place to ensure that American ideas and jobs are not stolen and sold overseas. The U.S. Chamber of Commerce urges Congress to move this much needed legislation quickly so that it may become law and our industry and workers can remain at the forefront of the innovation economy.
Microsoft and Eli Lilly--[LINK]
Our state-by-state system for trade secret protection was simply not built with the digital world in mind where one device containing purloined information can literally destroy a hard-earned competitive edge. In today’s global economy, however, trade secrets are increasingly stored and used across state line and even national borders. A uniform, national standard for protection will greatly benefit innovative enterprises of all sizes.
We commend Senators Orrin Hatch and Christopher Coons and Representatives Doug Collins and Jerrold Nadler for introducing the bipartisan Defend Trade Secrets Act. This thoughtful and carefully considered legislation will adapt America’s trade secret regime to reflect 21st Century realities and will strengthen this critical form of intellectual property. We urge favorable and expeditious consideration by both the Senate and House.
IM Flash in Lehi, Utah--[LINK]
In a world driven by innovation, American businesses large and small are setting the global standard for creativity and innovation. But the next generation of cutting-edge materials, semiconductors, devices, software applications and high-tech services does not come cheap. America's most innovative companies thrive because they invest in research and development.
We are grateful that the bill's lead proponent is Utah's Sen. Orrin Hatch, whose consensus-driven approach has produced legislation that will benefit innovators in all industries, unifying groups that have often been at odds on other intellectual property issues. The bill enjoys broad, bipartisan support with 65 Senate sponsors and is scheduled for a vote in the Senate after its Easter break.
There is nearly universal agreement on the need for a federal remedy for trade secret theft, and Micron is proud to support legislation that reflects a rare consensus among lawmakers. Strong trade secrets protection is essential for America's global competitiveness because it promotes an environment conducive to cutting-edge research, development, and collaboration. Enacting the bill will have an immediate, positive impact on innovative companies that create jobs in this country. We strongly support the bipartisan efforts of Hatch, and we urge Congress to move quickly to pass this important legislation.
Salt Lake Chamber and the Utah Technology Council--[LINK]
Trade secrets are the lifeblood of Utah's innovation economy. The state's businesses and manufacturers rely on trade secrets to protect their technologies, attract new investors, and maintain a competitive edge. But a glaring oversight in intellectual property law puts Utah jobs at risk. Even though trade secrets safeguard trillions of dollars in U.S. assets, companies have few legal options to protect their trade secrets in federal court if they are stolen — leaving this confidential information vulnerable to theft.
Thankfully, no one understands the heavy costs of trade secret theft better than one Utah's own Sen. Orrin Hatch. As chairman of the Senate Republican High-Tech Task Force, Hatch has established himself as a leading voice for pro-growth, pro-business policies. Now, as he works to implement his Innovation Agenda for the 114th Congress, Hatch is spearheading efforts in Congress to provide greater federal protections to companies threatened by trade secret misappropriation.
Part and parcel to this effort is the Defend Trade Secrets Act — a bipartisan bill Hatch co-authored with Senator Chris Coons, D-Del. With 65 co-sponsors from both parties, the bill is expected to pass with overwhelming support.
This legislation empowers American businesses by creating a private right of action that allows companies to protect their trade secrets in federal court. It also equips business owners with the tools they need to combat trade secret theft, including the ability to seek injunctions and to retrieve stolen assets before they are lost for good.
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