Embargoed: Hatch Speaks on Supreme Court Confirmations at Kennedy Institute Event
Washington, D.C.—Senator Orrin Hatch, the former chairman and current longest-serving member of the Senate Judiciary Committee, will deliver opening remarks on the Senate’s role in confirming Supreme Court Justices at an event hosted by the Edward M. Kennedy Institute.
Senator Hatch has stood as one of the strongest advocates for the Senate’s role in the confirmation process, repeatedly highlighting the autonomy the Constitution grants the Senate to determine whatever process and timing is best suited for any judicial nomination. In his remarks on Tuesday Hatch will address why he believes that the Senate should not hold hearing or votes on the current Supreme Court vacancy until after the election season is over.
Senator Hatch’s full remarks, as prepared for delivery, are below:
I’m glad to be with you for a few minutes today.
I served with Senator Kennedy on the Judiciary Committee for 32 years; in fact, he is the only Senator to have served on the committee longer than I have. I know this makes me sound even older than I am, but half of all life-tenured federal judges have been appointed since I joined the Judiciary Committee.
The judicial appointment process is an example of how America’s founders sought to limit government power by dividing it. The President has the power to nominate but cannot appoint without the advice and consent of the Senate, and debate continues about how robust or assertive the Senate’s role should be.
Three significant events occurred in the Judiciary Committee in January 1979. Senator Kennedy became chairman, Senator Leahy joined the committee, and the first hearing of the 96th Congress focused on the selection and confirmation of federal judges. This ongoing issue is obviously front and center today following the death of Supreme Court Justice Antonin Scalia.
The Kennedy Institute’s poll earlier this year found that only 36 percent of Americans know that the Senate has the role of advice and consent in the appointment of Supreme Court Justices. Raising that awareness, however, will do little good if Americans are aware of, but misunderstand, that Senate role.
Using the Scalia vacancy as an example, I want to make three brief points. First, the Constitution gives the Senate the power of advice and consent but does not specify how the Senate ought to exercise that power. Claims that the Constitution dictates when and how the confirmation process must occur, such as immediate committee hearings and timely floor votes, are false. In fact, the Judiciary Committee was not created until 29 years after the Constitution was drafted.
Second, the Senate has conducted the confirmation process in different ways, at different times, under different circumstances.
The Judiciary Committee held its first public hearing on a Supreme Court nomination in 1916, but the nominee did not appear. The regular practice of nominees appearing publicly before the committee did not begin until the 1950s. Earl Warren, for example, did not appear at his 1954 confirmation hearing to be Chief Justice.
In a 2014 report, the Congressional Research Service said this: “Neither the Judiciary Committee nor the full Senate is compelled to act on nominations which come before it.” Our former distinguished colleague Robert Byrd made the same point in a 2005 speech when he said: "There is no stipulation in the Constitution as to how the Senate is to express its advice or give its consent....The Senate can refuse to confirm a nominee simply by saying nothing and doing nothing." This is why the Senate has a standing rule providing that nominations that are neither approved nor rejected are returned to the President at the end of a two-year Congress.
Nearly one-quarter of all Supreme Court nominations were never confirmed. Another CRS report identified nearly a dozen different scenarios for how these nominations were handled. Some were referred to the Judiciary Committee but never reported to the full Senate. Some came before the full Senate but were never considered.
As a simple matter of historical precedent, the Senate has never confirmed a Supreme Court nominee to a vacancy occurring this late in a President’s tenure.
The Constitution does not mandate a one-size-fits-all confirmation process, but leaves these judgment calls for the Senate to make. We tend to focus on the Supreme Court, but the same issues apply to the confirmation process for lower court nominations. As Pat and I both know by experience, for example, Judiciary Committee chairmen of both parties have often decided, for different reasons, not to conduct a committee hearing for various nominees. The committee likewise has not always voted on each nominee who has had a hearing. To suggest otherwise is to misstate historical fact and misrepresent the meaning of advise and consent.
My third point is that the Senate majority has made its judgment call regarding the Scalia vacancy. For two reasons, we have decided that the confirmation process should take place after the presidential election season is over. First, conducting a heated, divisive confirmation fight in the middle of an ugly presidential election season that is well underway would do more harm than good—harm to the confirmation process, to the nominee, and to the country.
The second reason to defer the confirmation process is that elections have consequences. The 2012 election had consequences for the President and his power to nominate. The 2014 election had consequences for the Senate and its power of advice and consent. And the 2016 election will have consequences for the American people because they can have a voice in the direction of the courts. The issue is when and how, not whether, the Senate will consider a nominee for the Scalia vacancy.
I don’t want to throw off the schedule for this event right out of the gate, so I will leave it at that. The Senate plays an important role as a check on the President’s power of appointment. As Senators of both parties have noted over the years, the Senate is not simply a rubberstamp. Opinions differ about how deferential or forceful the Senate should be, but the Constitution leaves that judgment to us.
James Madison wrote that a well-instructed people can be permanently a free people. That is the Kennedy Institute’s mission and I want to thank you for all that you do.
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