Soon after Supreme Court Justice Antonin Scalia died, I attended a bill-signing ceremony at the White House. As Press Secretary Josh Earnest later described, President Barack Obama spoke to me about doing my “constitutional duty” on his expected nominee for the vacancy created by Scalia’s passing.
But sound bites are not arguments. Those who say “do your job” to the Senate are really just saying “do what we tell you to do.” Similarly, when Obama spoke to me about doing my “constitutional duty” on the Scalia vacancy, what he really meant was that he thinks the Senate should exercise its advice and consent power on the president’s terms. By deferring consideration of a nominee until after the election, I am doing exactly that.
The Senate’s job — its constitutional duty — is to determine the best way to exercise its advice and consent power in this particular situation. Historically, the Senate has always exercised this power in different ways under different circumstances.
A number of factors have led me to conclude that under current circumstances the Senate should defer the confirmation process until the next president is sworn in. First, the presidential election process is already underway, with voters in nearly one-third of the states having cast ballots. In nearly a century, a Supreme Court vacancy has only twice occurred after presidential voting began. Both times, in 1956 and 1968, the Senate declined to confirm the nominee until the next year.
Second, both presidential campaigns and the judicial appointment process, especially for the Supreme Court, have become increasingly confrontational. In June 1992, then-Judiciary Committee Chairman Joseph Biden made the case for deferring the confirmation process if a Supreme Court vacancy occurred in that presidential election year. He argued that “election-year politics can pollute Senate consideration” of a nominee, resulting in “partisan bickering and political posturing” rather than the serious consideration that a Supreme Court vacancy demands.
The third reason to defer the confirmation process is that elections have consequences. In 2014, the American people decisively handed the Senate majority to Republicans as a check on Obama’s overreach. Given how crucial the courts in general — and the Supreme Court in particular — have been to holding the Obama administration accountable to the law and the Constitution, the Senate has every reason to approach these lifetime appointments cautiously and deliberately.
While voters do not appoint judges, they elect the president who nominates and the senators who confirm. Obama has consistently appointed activist judges who are eager to change the meaning of statutes and the Constitution to facilitate a liberal political agenda. Scalia represented a very different kind of judge, one who takes the law as he finds it, applies it impartially and leaves the consequences to the people and their elected representatives. These are two radically different approaches to judging, with radically different consequences for our country and our liberty. In these unique circumstances, the American people should have an opportunity to weigh in on the kind of judge America needs.
The Constitution does not dictate how or when the Senate must exercise its advice and consent power. Those demanding a “timely hearing and vote” for a Democratic nominee today denied hearings and blocked confirmation votes for dozens of Republican nominees only a few years ago. “Do as I say, not as I did” is not a credible principle for the appointment process.
A pitched political battle over a Supreme Court nomination in the middle of an increasingly ugly and divisive presidential campaign is not the proper way to address the vacancy left by Scalia’s passing. The better course is for the next president, with input from the American people voting in the upcoming election, to make this appointment.
Orrin Hatch is the senior U.S. senator from Utah.