Hatch: “Some are paying very little attention to the Constitution”
Washington, D.C.—Senator Orrin Hatch, R-Utah, the senior member and former Chairman of the Senate Judiciary Committee, delivered a speech on the Senate floor today to stress the importance of waiting until after the presidential election to confirm Justice Scalia’s replacement to the Supreme Court.
The Constitution does not dictate how the Senate must exercise its power of advice and consent. The Constitution leaves that up to us in each situation. The Senate has never allowed a term-limited President to fill a Supreme Court vacancy that opened up this late in his term. In fact, this vacancy is only the third in the last century to occur after presidential election voting has started. The other two times, in 1956 and 1968, the Senate did not confirm a nominee until after the inauguration.
On the Democrats' slogan “Do your job:”
One of the most popular slogans in the debate over filling the vacancy left by the death of Supreme Court Justice Antonin Scalia is “do your job.” Never have so few words been so misleading for so many. Those who use this slogan insist that the Senate’s job is to conduct the confirmation process, including hearings and confirmation votes, in a certain way whenever the President makes a nomination. The Senate, in other words, should be at the President’s beck and call, configuring the confirmation process around a particular timeline that he prefers.
The full speech, as prepared for delivery, is below:
Mr. President, the Constitution is the primary way that the American people set rules for government. America’s founders made sure those rules are written down so that, as the Supreme Court said more than two centuries ago, they may be neither mistaken nor forgotten. The U.S. Constitution is one of the shortest, and currently the oldest, national charter in the world. But while public officials, including every member of this body, swear an oath to support and defend the Constitution, it appears that some are paying very little attention to it.
One of the most popular slogans in the debate over filling the vacancy left by the death of Supreme Court Justice Antonin Scalia is “do your job.” Never have so few words been so misleading for so many. Those who use this slogan insist that the Senate’s job is to conduct the confirmation process, including hearings and confirmation votes, in a certain way whenever the President makes a nomination. The Senate, in other words, should be at the President’s beck and call, configuring the confirmation process around a particular timeline that he prefers.
There is some irony here, Mr. President. A few years ago, President Obama wanted to install certain members of the National Labor Relations Board. The Senate was unlikely to confirm his nominees, so the President bypassed the Senate altogether and made so-called recess appointments. The Supreme Court eventually, and unanimously, ruled that those appointments were unconstitutional. Now that he intends to send a nominee to the Senate, he feels he can dictate how the Senate evaluates that nominee. The President would, no doubt, be the first to say that the Senate cannot tell him who to nominate, but apparently feels he can insist on whatever Senate confirmation process that will suit his purpose.
Colleagues on the other side of the aisle insist that the Constitution requires timely hearings and votes for every nominee. I don’t know what Constitution they are using, because the real one says nothing of the kind. The real Constitution gives to the President the power to nominate, and to the Senate the separate power of advice and consent, leaving to each the judgment of how to exercise their power.
Actually, Mr. President, I should say that my Democratic colleagues are currently insisting that the Constitution requires timely hearings and votes, because they were singing a very different tune only a few years ago. The Minority Leader, the Minority Whip, and the Judiciary Committee Ranking Member each voted dozens of times to deny any confirmation vote whatsoever for President George W. Bush’s judicial nominees. Were they voting to defy the Constitution then, or are they referring to a made-up, fictional Constitution now?
When they served in this body, Vice President Biden and former Secretary Hillary Clinton voted, respectively, 29 and 24 times to deny the very confirmation votes that they now say the Constitution itself requires. The shape-shifting Constitution they use apparently means whatever then suits their political objectives. A coincidence, I’m sure, but a very convenient coincidence.
The President himself, when he was a Senator, tried to deny confirmation votes to multiple nominees, including Supreme Court Justice Samuel Alito. While President Obama recently said he now regrets voting to filibuster Justice Alito, he did not explain why it took him 3,670 days to reach that conclusion. Cynics might even suggest that his desire now to appoint another Supreme Court Justice may have contributed, in some small way, to this epiphany on principle.
So when Democrats in this body, and their equally confused liberal allies, call on the Senate to do its job, they really mean that the Senate should do what they want.
I, too, want the Senate to do its job, but I don’t find our job description in one party’s political agenda. The Senate’s job is to determine the best way to exercise its advice and consent power in each particular situation, and the Senate has done so in different ways, at different times, in different circumstances. When he was Judiciary Committee Chairman in the 107th and 110th Congress, for example, Senator Leahy denied a hearing to nearly 60 judicial nominees, yet those are the hearings that he now says the Constitution definitively requires.
On May 19, 2005, the Minority Leader said that nowhere in the Constitution does it say the Senate has to give Presidential appointees a vote. He called that notion rewriting the Constitution and reinventing history. Today, he says the opposite: that the Constitution actually does require a vote. Was he wrong in 2005, or is he—in his words—rewriting the Constitution and reinventing history today?
No, Mr. President, the Constitution does not dictate how the Senate must exercise its power of advice and consent. The Constitution leaves that up to us in each situation. The Senate has never allowed a term-limited President to fill a Supreme Court vacancy that opened up this late in his term. In fact, this vacancy is only the third in the last century to occur after presidential election voting has started. The other two times, in 1956 and 1968, the Senate did not confirm a nominee until after the inauguration.
As a member of the Judiciary Committee for 39 years, and a chairman for eight of those years, I have watched the judicial confirmation process disintegrate. Conservatives and liberals have very different views about the kind of judge America needs. Several Supreme Court nominees in the last few decades have been subject of intense, confrontational campaigns. In addition, the current presidential election cycle is already more hostile and divisive than in the past.
These are among the circumstances that we face us today and must consider when deciding how to exercise our power of advice and consent. It would be irresponsible to follow a process suitable for a different situation or, worse, a process designed only to produce a desirable political outcome. Combining a high-stakes confirmation fight with a no-holds-barred presidential campaign will produce a storm that will do more harm than good. The better course would be to defer the appointment process until the next President takes office.
We are not without guidance in making this decision. In June 1992, then-Judiciary Committee Chairman Joseph Biden argued that if a Supreme Court vacancy occurred in that presidential election year, the appointment process should be deferred until the election season was over. By combining an increasingly divisive appointment process and a presidential election that is already underway, he said, “partisan bickering and political posturing” would overwhelm the serious debate necessary to make such an important decision. He could easily have been talking about 2016 instead of 1992.
This vacancy also presents the American people with a rare opportunity to address the direction of the judiciary. The percentage of Americans concerned about that direction has risen steadily for years and, while voters do not appoint judges, they do elect the President who nominates and the Senate that gives advice and consent. Elections, after all, have consequences. The 2012 election had consequences for the President’s power to nominate, and the 2014 election had consequences for the Senate’s power of advice and consent. With this Supreme Court vacancy on the table, the 2016 election can similarly have consequences for the American people’s voice on this important issue.
Deferring the appointment process also minimizes partisanship and maximizes fairness. No one knows the party of the next President, the makeup of the next Senate, or the identity of the nominee the Senate will consider. Choosing the appropriate process for the current circumstances, rather than for partisan advantage, can prevent a nominee from being perceived as a political pawn.
The Constitution leaves nominations to the President, and leaves advice and consent to the Senate. That division of responsibility is written down for all to see and, hopefully, for none to forget. Deferring the process for filling the Scalia vacancy until the next President takes office is the best approach for the Senate, the judiciary, and the country.
Before I close, I have to say a word about the disgraceful attacks on my friend and colleague, the Chairman of the Judiciary Committee. I have served with him on the Finance Committee for nearly 25 years and on the Judiciary Committee for 35 years. If anyone knows his own mind, it is Senator Grassley. He has served on the Judiciary Committee longer than all but four Senators in the committee’ history. No one is more dedicated to the Judiciary Committee, and to the Senate, than he is. Each of us is entitled to our own opinions or position on issues that come before this body, even controversial ones. Each of us can feel as strongly as we want about those issues. But I want to categorically reject the notion that a difference of opinion means that someone like Senator Grassley is compromising the integrity or independence of the Judiciary Committee. That comes very close to impugning his character, and that sort of attack is beneath the dignity of this body.
