How About Orrin Hatch for Supreme Court?
By Mary Mostert (07/07/05)
The media, and both the left and the right politicians and commentators are in an absolute frenzy right now about who President Bush should choose as the next Supreme Court justice to take the place of Sandra Day O’Connor, who was often a swing vote on the Court. On one side we have the Democrats demanding a “consensus” candidate, meaning someone who agrees with them often, and on the other side we have those claiming to be conservative Republicans demanding a “pay-off” for their support by President Bush nominating a very conservative justice.
I expect before his term is over President Bush may be nominating 3 or 4 justices. Perhaps the best candidate to pick for this first spot to open ought to be a conservative who has demonstrated an important constitutional principle being debated here – i.e. that it is the PRESIDENT, not the SENATE that has the constitutional authority to choose judges and ambassadors – even when the minority does not agree with the politics of the president.
The name that comes instantly to my mind would be Senator Orrin Hatch who was Minority leader on the Judiciary Committee in 1993 during when Ruth Bader Ginsburg was nominated by President Bill Clinton to be a Supreme Court Judge. Orrin Hatch, a Republican from the conservative State of Utah explained by he would vote in favor of Ginsburg in a speech on the floor of the Senate on August 2, 1993. He did not vote for her because he agreed with her liberal views.
In fact, he made it clear that he did not agree with her politics but went on to say, in announced he would vote for her confirmation:
“President Clinton and I are unlikely ever to agree on the ideal nominee to be a Supreme Court Justice. Indeed, there have been many prominently mentioned potential nominees whom I would in all likelihood vigorously oppose. But I do believe that a President is entitled to some deference in the selection of a Supreme Court Justice. If a nominee is experienced in the law, highly intelligent, of good character and temperament, and--most important--gives clear and convincing evidence that he or she understands and respects the proper role of the judiciary in our system of government; the mere fact that I might have selected a different nominee will not lead me to oppose the President's nominee.
In the case of Judge Ginsburg, her long and distinguished record as a judge on the U.S. Court of Appeals for the District of Columbia circuit is the critical factor that leads me to support her. Her judicial record demonstrates that she is willing and able to issue rulings called for by the Constitution and the Federal statutes, even though Judge Ginsburg, were she a legislator, might personally have preferred different results as a matter of policy. Several examples may illustrate this point:
In Women's Equity Action League v. Cavazos, 906 F.2d 742 (D.C. Cir. 1990), Judge Ginsburg wrote an opinion holding that because Congress did not intend to give a cause of action to civil rights groups or anyone else to sue federal officials to force them to enforce civil rights laws as those groups would have them enforced, the courts had no authority to create such a cause of action for these civil rights groups. Judge Ginsburg declined an opportunity to legislate from the bench, even though from her background as a women's rights lawyer she might have been thought to be sympathetic to the plaintiffs.
In Randall v. Meese, 854 F.2d 472 (D.C. Cir. 1988), Judge Ginsburg wrote an opinion that was joined by Judge Silberman, a Reagan appointee, and from which Judge Mikva, a Carter appointee, dissented. In that opinion, she ruled that an alien who was present in this country on a visitor's visa, and who was denied adjustment of status to permanent resident alien, had to first exhaust her administrative remedies provided for by law before seeking judicial recourse. This is an elementary principle of administrative law that, when properly adhered to as Judge Ginsburg did in this case, reduces litigation and permits adjudication, if it must finally occur, to be based on a fully developed record.
In Dronenburg v. Zech, 746 F.2d 1579 (D.C. Cir. 1984), Judge Ginsburg, alone of the Carter appointees on the D.C. circuit, agreed with Judges Robert Bork and Antonin Scalia that a homosexual sailor's constitutional challenge to the military's homosexual-exclusion policy was precluded by a controlling Supreme Court decision that had summarily affirmed a district court decision upholding a Virginia statute criminalizing homosexual conduct. Her liberal colleagues on the Court wanted to extend the right of privacy announced in other cases to this situation, but she properly, in my view, concluded that the Supreme Court's summary affirmance was controlling, and whatever her own views on the right to privacy, there was no latitude to apply it there. That was the correct decision, regardless of where you are on gay rights.
She explained, `No judge is appointed to apply his or her personal values.' Instead,
Hatch found “disturbing” her view that a right to abortion could be based on the equal protection clause is, I believe, ultimately untenable.” But because, as he said “I am opposed to the politicization of the judiciary, I believe that it is improper to apply any single-issue litmus test to Supreme Court nominees.” He said he thought her to be “a fine scholar on the law” and an “ethical” person.
Orrin Hatch is a conservative, but more importantly, he understands that the need for a balance of powers as built into the Constitution is more important than his political views. The Senate does not have the Constitutional power to tell the president how to be president. It is the responsibility of the voters to choose the person they want as president and in 1993 that person was Bill Clinton.
Today the voters have chosen George W. Bush. A reminder of that through the choice of a real constitutionalist like Orrin Hatch might do those hotheads on both sides of debate who want to force the president to bend to THEIR will might be quite enlightening. Besides it might be interesting to see if a wild-eyed liberal like Sen. Ted Kennedy, who claims he respects and is a friend of Orrin Hatch, would have the nerve to vote against him.
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