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Senate's Job Is to Protect the Supreme Court

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Recently, I was invited by a well-respected legal organization to speak at their monthly lunch meeting. As a group of 200 Washington-area lawyers sat eating in a packed Chinatown restaurant, I began to share my thoughts regarding the current vacancy on the Supreme Court caused by the untimely death of my friend, Justice Antonin Scalia. 

Midway through my remarks, a group of protesters rose from their seats near the front of the room and began shouting “Do your Job!” As these disrupters stood chanting and holding professionally printed signs, it reinforced my belief that by deferring the confirmation process until after this toxic election season, the Senate is doing exactly what it should: We are doing our job. 

Now that a majority of states have held presidential primaries, and as this hostile election cycle turns from those contests to general election, organized disruptions of any thoughtful discussion about the Supreme Court will only intensify.

Make no mistake: These protesters are not interested in seeing the Senate take seriously its constitutional duty to provide advice about, and determine whether to give or withhold consent to, a consequential Supreme Court nomination. They care little about the Senate operating as a check and balance to the executive branch and instead simply insist that the Republican-led Senate do what progressive activists want and rubber-stamp a presidential appointment.

Liberals want above all to shift the balance of the Supreme Court to the left, a move that will have dramatic consequences for the lives and freedoms of all Americans for generations. By means of this lifetime judicial appointment, Democrats want to reshape the Supreme Court to reach different outcomes on issues ranging from individual gun rights to religious liberty to affirmative action to the very system of constitutional checks and balances designed to limit the overreach of an ever-expanding administrative state.

Among the most important ways that our nation's founders sought to restrain executive power was to entrust the Senate with the advice-and-consent power for presidential nominations -- including nominations to the Supreme Court. As the president and his political allies lecture the Senate on how it should fulfill this constitutional responsibility, it seems clear that the Senate must seek to protect the judicial branch from ever-increasing partisan and political influences. 

The legitimacy of the Supreme Court rests on the public’s perception that our judiciary is fair, impartial and not susceptible to the pressures of partisan politics. By seeking to thrust a confirmation battle into the middle of a particularly bitter presidential election, President Barack Obama carelessly risks further polarizing and politicizing the confirmation process, and further damaging the integrity and public standing of the Supreme Court as an institution. 

Perhaps Vice President Joe Biden put it best while serving as Senate Judiciary Committee chairman in 1992. He said, “Senate consideration of a nominee under these circumstances is not fair to the president, to the nominee, or to the Senate itself….[W]here the nation should be treated to a consideration of constitutional philosophy, all it will get in such circumstances is partisan bickering and political posturing from both parties and from both ends of Pennsylvania Avenue.”

I agree with what the vice president said then, that “the Senate Judiciary Committee should seriously consider not scheduling confirmation hearings on the nomination until after the political campaign season is over.” Throughout the years, responsible elected officials of both parties have rightly concluded that deferring the confirmation process until after a politically charged presidential election is in the best interest of fair treatment for a nominee and preserving the dignity of the Supreme Court.

In the weeks and months to come, we can expect professional political activists on the left to ramp up efforts to organize protests and media campaigns, and persistently badger Republican senators to “do their job” by rubber-stamping a nominee in the midst of political turmoil. This partisan campaign by the left is only more evidence that the best way for the Senate to do its job in such a caustic environment is to insulate the Supreme Court from polarizing political gamesmanship.

The liberal left is seeking to bully the Republican-led Senate into ignoring its constitutional responsibilities and further destroying our nation's delicate system of checks and balances. Reflecting on the Senate’s solemn duty with respect to Supreme Court nominations, I am more resolved than ever to move forward with the confirmation process only after this toxic election season is over.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Orrin Grant Hatch at mail@hatch.senate.gov

To contact the editor responsible for this story:
Katy Roberts at kroberts29@bloomberg.net