When Michael Dukakis said in the presidential debates that George Bush would appoint a "Supreme Court full of Robert Borks," he meant it as an insult. Sen. Orrin Hatch, R-Utah, says it was really a compliment.
He says judges such as Bork - whose Supreme Court nomination was rejected by the Senate - would interpret the Constitution as intended by its authors. Such Bush nominees might even include a few people with close Utah ties.But Hatch predicts Dukakis appointees would "legislate from the bench" to favor abortion, strike down capital punishment and "promote the social agenda of the American Civil Liberties Union." Hatch says Dukakis appointees to the Massachusetts Supreme Judicial Court are already doing that.
Hatch, who led fights in the Senate Judiciary Committee for Reagan nominees, said in a Deseret News interview that because several justices will likely soon retire, Americans will essentially elect a Supreme Court when they elect a president next month.
"Without question that will be one of the major issues the rest of the campaign," Hatch said. In fact, the Dukakis campaign said in recent days it will constantly attack Bush's support of conservative court nominees.
Hatch said, "Three judges - Thurgood Marshall, William Brennan and Henry Blackmun (all liberal) - are older than 80 and would likely be replaced in the next four years. Byron White (a moderate) has also talked about retiring. Blackmun has said he wants to be replaced with someone who is pro-abortion and has been hanging on until Reagan leaves office. But his health may not permit him to serve another four years if Bush wins."
Hatch added, "If Bush wins, you will see moderates and conservatives appointed." He said that Democratic control of the Senate may not allow ratification of true conservatives.
But Hatch said Bush still might select someone such as Rex Lee, former U.S. solicitor general and BYU law professor, or J. Clifford Wallace, an LDS Church member who is a judge in the 9th U.S. Circuit Court in San Diego. Hatch's name has also been mentioned by some as a possibility.
But Hatch downplays that, saying he doesn't have as close ties with Bush advisers as he has had with Reagan's and that "you need to have people like me in the Senate to push any sort of agenda." He also says he does not aspire to be a justice - but he still could not refuse the honor if Reagan or Bush wanted to nominate him.
Hatch doubts Dukakis' claims that he would appoint judges who are "ideologically neutral."
"He already has a clear record, and there's no way the people he has appointed are ideologically neutral," Hatch said.
He is especially critical of the Dukakis appointment of Paul Liacos and Ruth Abrams to the Massachusetts Supreme Judicial Court and said they have pursued the "ACLU social agenda."
He said the two voted to consider capital punishment as cruel and unusual punishment - even though the U.S. Supreme Court does not. And when the Massachusetts Legislature amended the state constitution in an attempt to permit capital punishment, Hatch said they voted to strike it down on procedural grounds.
He criticized their votes to overturn the conviction of a father who raped two of his children because the children did not testify in court but via closed-circuit television from an adjacent room.
He said their decisions held that constitutional rights might be violated by police writing down phone numbers of potential criminals, have given protection to child pornography and "have been a disaster on liability" by doing such things as holding a hospital liable for a doctor who raped a patient, even though it did not occur at the hospital.