Let Voters Decide the Court’s Future
By ORRIN G. HATCH
http://www.nytimes.com/2016/03/28/opinion/let-voters-decide-the-courts-future.html?_r=2
JUSTICE ANTONIN SCALIA was among the greatest jurists in our nation’s history. Following an era of unchecked judicial activism, he became a model of careful jurisprudence, reinvigorating an originalist interpretation of the Constitution for a new generation. Justice Scalia’s approach was grounded in the words of legal texts, and not in a judge’s personal preferences or the vagaries of popular political beliefs.
Throughout his time in office, President Obama has demonstrated contempt for the constitutional principles that Justice Scalia sought to protect. Mr. Obama has proudly suggested that “empathy” for particular people and groups should motivate a judge’s decisions — a belief squarely at odds with the judicial oath to “administer justice without respect to persons.” The president has appointed two Supreme Court justices and many lower court judges who have embraced the sort of judicial activism Justice Scalia spent his career seeking to curtail.
As a senator, Mr. Obama even opposed the nominations of Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. — two eminently qualified mainstream jurists — because they expressed fidelity to the law as written, rather than a commitment to progressive policy outcomes.
Most troubling, the president has consistently exceeded the scope of his legitimate constitutional authority, declaring that “where Congress won’t act, I will.” One result has been a concerted effort by his administration to stretch the Constitution beyond its breaking point to advance Mr. Obama’s ideological objectives — from Obamacare and environmental regulation to immigration policy and gun control.
The Senate, under Democratic leadership, was an accomplice in this effort, working to pack the federal courts with compliant judges and eliminate the threat of judicial checks on Mr. Obama’s executive unilateralism. Largely in reaction to such abuses, the American people elected a Republican Senate majority in 2014 to help restrain the president.
Given that the American people have elected a president and a Senate majority with drastically different views on the nature of legitimate constitutional government — a split decision of sorts — it seems appropriate to let 2016 voters decide which of two very different paths the Supreme Court should take.
But the American people can influence that course only if the Senate holds confirmation proceedings after the election season has ended. This should not be a controversial position.
After all, both Republican and Democratic leaders, including Vice President Joseph R. Biden Jr., have argued in the past that the Senate should defer consideration of life-tenured judges until after presidential election cycles.
Throughout its history, the Senate has never confirmed a nominee to fill a Supreme Court vacancy that occurred this late in a term-limited president’s time in office. Considering a nominee now — in the middle of the nastiest election campaign in recent memory — could damage the judicial confirmation process beyond repair.
Having served on the Senate Judiciary Committee for nearly four decades, I have witnessed firsthand the deterioration of the confirmation process. Neither party has clean hands on this front.
The bitterness began when liberal senators attempted to savage the reputation of Judge Robert Bork in a campaign of character assassination led by Mr. Biden, who then was chairman of the Judiciary Committee. So unprecedented was this vicious effort to sully the nominee’s good name that the Democratic strategy generated its own verb: to bork.
Just a few years later, hostilities reached new heights when Democrats unapologetically attempted to bork Clarence Thomas’s nomination. During George W. Bush’s presidency, Senate Democrats led filibusters that were unprecedented in seeking to block federal court nominees supported by a majority of senators.
Add to this growing list of grievances the Democrats’ “nuclear” demolition of the judicial filibuster and President Obama’s subsequent efforts to pack the courts — the powerful D.C. Circuit Court of Appeals in particular — with judges committed to rubber-stamping his progressive agenda.
Given this record, Democrats have no credibility in lecturing Republicans on how to conduct the current confirmation process. Their recent actions only validate the rationale for waiting. From personal attacks on Republican committee chairmen to coordinated disruptions by professional activists, liberal pressure tactics belie any commitment to keeping politics out of the confirmation process.
Considering a nominee in the midst of a toxic presidential election would be irresponsible. Doing so would only further inject a circus atmosphere into an already politicized confirmation process. Conducting a thoughtful and substantive deliberation after the election is in the best interests of the Senate, the judiciary and the country.
