This is an archived article that was published on sltrib.com in 2016, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.
The Tribune's March 18 editorial gets it right on two important points regarding the vacancy left by the untimely death of Justice Antonin Scalia. First, forcing a Supreme Court confirmation fight into a particularly divisive presidential election contest would be a real mess. It would be highly unusual indeed almost without precedent to fill a vacancy this late in a presidential election season. Second, while the Constitution gives the power of advice and consent on nominations to the Senate, it does not specify how we should exercise that power.
Because the Senate must decide how best to exercise its advice and consent power on a case-by-case basis, it has exercised that power in different ways, at different times, under different circumstances.
For three reasons, I believe the best way for the Senate to exercise its power of advice and consent regarding the Scalia vacancy is to conduct the confirmation process after this toxic election season has passed.
The first reason is precedent. This is only the third vacancy in nearly a century to occur after the American people had already started voting in a presidential election, and in both the previous two instances in 1956 and 1968 the Senate did not confirm a nominee until the following year. The Tribune's ignorance of this longstanding history is no excuse for falsely accusing Republicans of making it up "out of whole cloth."
The second reason for my conclusion is the consistent guidance from past Senate leaders of both parties. For example, in 1992, another presidential election year, then-Judiciary Committee Chairman Joe Biden recommended that the entire Supreme Court appointment process including the president's nomination be deferred until after the election. Many other Senate Democratic leaders, from Harry Reid to Chuck Schumer, have said the same thing, and their rationales apply just as well today as they did in the past.
The third reason is that elections have consequences. The 2012 election was obviously meaningful for the president's power to nominate and President Obama has exercised that power by nominating Judge Garland. But the 2014 election was also meaningful for the Senate's power of advice and consent. In that election, the American people elected a Republican Senate majority in large part to check President Obama's executive overreach. Given how crucial the courts have proven in holding this administration accountable to the Constitution, the Senate has every reason to approach lifetime appointments cautiously and deliberately, especially appointments to the highest court in the land.
The Tribune is also oblivious to the facts by blaming Republicans for turning the appointment process into a "toxic, partisan firestorm." As a member of the Judiciary Committee for nearly four decades, I have witnessed how Democratic leaders have been responsible for every major escalation in the divisiveness of the confirmation process from the character assassinations campaigns waged against Robert Bork and Clarence Thomas to the unprecedented filibusters of President George W. Bush's nominees to the unilateral use of the "nuclear option" to blow up the filibuster. Those who were responsible for every single one of these major escalations in the so-called "judicial confirmation wars" have no credibility to lecture anyone on what a proper confirmation process should look like in this situation.
I think highly of Judge Merrick Garland's integrity, intellect and commitment to public service, and The Tribune's implication that I have treated him disrespectfully is completely unfounded. After the next election, I look forward to examining the record of whomever is then the nominee be it Judge Garland or anyone else and to a thorough and fair confirmation process. The issue regarding the Scalia vacancy is when not whether or how the confirmation process will occur. Considering all of the facts and candidly assessing the state of the confirmation process counsel strongly in favor of deferring that process until the next president takes office.
Sen. Orrin G. Hatch is the senior U.S. senator for Utah.