A long time member of the Senate Judiciary Committee and past Chairman Orrin Hatch joined me on today’s program to explain why he supports a firm “no hearings/no votes” position on the SCOTUS vacancy:
HH: Joined now by United States Senator Orrin Hatch of the great state of Utah, formerly chairman of the Senate Judiciary Committee, now a member of the Judiciary Committee, probably the one with the longest consecutive years of service on the Judiciary Committee. Senator Hatch, welcome back to the Hugh Hewitt Show, always a pleasure to talk to you.
OH: Well, it’s a pleasure to talk to you, Hugh. I think you do such a terrific job, so just keep it up.
HH: Well, thank you. Tell me what the state of play is on the SCOTUS vacancy. My opinion, of course, is you shouldn’t hold hearings or votes at all, but I don’t know what your opinion is.
OH: Well, that’s my opinion, too. I actually think, look, we’re in the midst of the most awful presidential election I’ve seen in history in my 40 years in the Congress. And frankly, I don’t want to get the Supreme Court embroiled in this. I think Justice Scalia deserves better treatment than that. You know, the American people have already begun voting for the next president of the United States. You know, and I believe that Justice Scalia’s replacement should not take place until after the American people have made that choice. And I think that’s consistent with historical practice, because we’ve never had justices in the last 80 years chosen during the last year of the president’s term except for Kennedy, and that was after a brouhaha, you know, over Bork and others. And frankly, he was a consensus candidate in the end, and both sides voted for him.
HH: And he was nominated in November of ’87, I point out to people. But I’m concerned as well that a nominee not be misled. They’re not going to be confirmed, but they will be subjected to the most, you know, searching inquiry if their name is put out there. It will be unpleasant. It will be unfair, and it will be futile, Senator Hatch, right? The Republicans aren’t going to fold on this.
OH: No, they’re not, and it’s going to be, it would be a denigration of that person’s reputation not by Republicans, I think more by Democrats than Republicans. Look, this was all started by Democrats. Bork was the perfect illustration, how they mistreated them. And then, you know, let me talk about Clarence Thomas. My gosh, what they tried to pull on him was just incredible. And fortunately, he was able to get through. He squeezed through as a member of the Supreme Court, and he’s done a terrific job ever since. But let me tell you, these people don’t play fair. And I want to get it out, they’re not going to play fair no matter what, but it’ll be a lot better out of this particular brouhaha that we’re in right now over the presidential candidates on both sides. I mean, it’s just awful.
HH: So when Chairman Grassley opened the door to hearings, I thought, I don’t know why he did it, but I thought it was a strategic mistake. Have the Republican Caucus gotten together to discuss this, yet?
OH: No, we’ve all been on recess, and a lot of us are out campaigning for our own choice for presidential candidate. But you know, this’ll be up to Senator Grassley, and I think Senator McConnell. He’s going to certainly consult with McConnell as well. And I agree with you. There, if we’re not going to confirm somebody, there’s no reason why we should go ahead and have hearings, especially in this contentious atmosphere that we’re in right now.
HH: Now you were a friend of Justice Scalia.
HH: I only served in his chambers for a couple of weeks when my judge was sick back in 1983-84, so I didn’t know him very well. But you knew him very well.
OH: Oh, yeah.
HH: Would he be at all upset that the Court’s vacancy continued for, you know, 11 months?
OH: No, he knows that the Court can function with eight members. The fact of the matter is it has many times functioned with eight members. Yeah, they’d have to put aside until they get the next justice, they’d have to put aside some of the most contentious cases, but Republicans have put the Senate back to work passing landmark legislation on trade, transportation, education, taxes and other issues. And whether the Senate contains, you know, confirms an election year Supreme Court vacancy, it seems to me has nothing to do with whether Congress is back to passing laws and working the way it should.
HH: Oh, I agree.
OH: You know, in all honesty, the Democrats are going to scream and shout on this issue, but wouldn’t it be better to preserve the integrity of the Court, get this out of this contentious political arena that we’re in right now, give both sides an equal chance to have this justice position next year, and have it be in a position of at least decency and care for the Court rather than just a care for politics?
HH: I agree with you, Senator. I also believe I’d rather lose the Senate majority with a fight than to lose the Supreme Court without one. And I…
OH: Yeah, you got that right. And look, I can’t begin to tell you, Hugh, how important you are in the overall discussion of these matters over the years. You’re bright, you’re intelligent, you have the background in the law. My gosh, you’re one of the best commentators I know. And I’m not trying to ease up to you. I just want you to know that you’re very much appreciated. But this is an important year. We have, as a practical matter, have not had these positions up during presidential years, and there’s good reason for it. Sometimes where there’s no vacancy, but there’s a good reason for it, and that is that we don’t want the Court to be politicized. And certainly, Scalia was one of these people who thought people ought to keep their dirty hands off the Court. And he deserves, it seems to me, in remembrance of the tremendous service he’s given, he deserves a really, really good process here, and not something that’s thrown together in a middle of a very contentious presidential election just because, and votes are already being done in this presidential election. Why would we get involved in, you know, denigrating the Court by having another big contentious battle over…
HH: That’s very high ground. I wish all the Republicans would get up on that high ground and say no hearings, no votes, the Court is above the political season that we are in, and we are going to maintain it. And the next president, be it Hillary Clinton or whoever the Republican nominate, I don’t know if you’ve endorsed in this, Senator Hatch, they get to shape the Court with the people knowing that they are going to shape the Court.
OH: Well, you stated that much better than I do, but let me just say that you’re right. The Court is very important. It’s one-third of the separation of powers. It means so much to this country to have honest, decent, non-political people on the Court, and I shouldn’t say non-political, but people who have good political sense on the Court, who basically love the Court, and basically realize that they’re there for all the people, not just their party. I mean, you know, it’s incredible to me the ones that come across and make the quorum of five or more generally are Republican. You can hardly ever get the four liberal Democrats to break ranks at all on anything.
HH: Oh, President Obama will almost certainly, I mean, he will nominate someone who will basically erase the Free Exercise Clause. He’ll overturn Hobby Lobby.
OH: Oh, yeah.
HH: They’ll overturn Citizens United. They will overturn the 2nd Amendment cases of Heller and McDonald.
HH: It would be a disaster, but if that’s what the people want, they can vote for it, Senator.
OH: That’s right. Well, it’s even more than that. They’re not tampering with free speech. They’re tampering with religious freedom. We know the 2nd Amendment would go down tomorrow, which is one of the most important amendments in the Constitution right there. I can, you can go into corporate world. You’ll see a complete change of the law for the worse if we get somebody in there who’s just there for political reasons.
HH: Well, Senator Hatch, good luck in rallying your colleagues. So I saw that yesterday, Senators Portman and Toomey, Ron Johnson and Kelly Ayotte all said there will be no confirmation. But I’d love to have the no hearings, no vote agreement of 54 Senators so that it could just be put to bed. And Democrats will be mad at you, but so what? They’re mad at you anyway.
OH: Yeah, and they play this game very, very hard. And we’ve got to play it hard, too, but we ought to do it with our, with dignity and decency.
HH: I agree with that. Orrin Hatch, always a pleasure to speak with you.
End of interview.