Monday, March 28, 2016

Sen. Hatch's Op-Ed: `Let Voters Decide' dodges responsibility for choosing a Scalia Successor- The New York Times

How one frames an argument determines its outcome.  In a Times Op-Ed Utah Senator Orrin Hatch frames the issue of Merrick Garland's nomination in a patently distorted way.
First - he completely ignores the nominee - Chief Judge Merrick Garland, whose integrity  on the bench Hatch himself has said is unassailable. Nor does he mention that he voted for Garland in 1997.
Second he pivots to President Obama as the object of attack.  The President, says the Senator, has "contempt for constitutional principles".  To wit that "empathy...towards particular groups" should drive judicial decision-making.  Obama, introducing Sonia Sotomayor, emphasized "empathy" as a judicial virtue.  And it surely is: that justice (meaning adherence to rule) should be tempered by mercy (empathy) is surely a bedrock element of judiciousness - that virtue long celebrated.  And one for which Merrick Garland is highly respected.
Third, Hatch distorts the issues - framing it as qualifications (Roberts, Alito both of whom Obama opposed as a Senator)  vs. "activism" by Justices Kagan and Sotomayor (both of whom, like Garland have the now usual Harvard/Yale credentials).
Supreme Court Justices have never been chosen solely for their competence.  Everyone knows - especially Senator Hatch - that the words of laws and judges are often malleable (corporate campaign donations are "speech"; "equal protection of the law" extends to or does not extend to homosexuals).  Justice Scalia whom Hatch celebrates loudly voted No in every gay rights case that came before him.  That is policy making - not following the law's literal command.

So the only real issue regarding the Garland nomination is whether the policy views of the nominee are ones that the Senator finds acceptable or unacceptable. It is on those issues that Orrin Hatch has a duty to account; and to explain his vote.  Instead he adheres to the partisan refusal to meet the candidate, hold hearings, or vote on the nomination.  Leaving the issue to the electorate is a dodge.  It deprives the public of a debate on what is surely an important nomination - because it would replace a vote on the far right to one at the center,  And everyone knows that the location of the fulcrum determines outcomes.
- gwc

Let Voters Decide the Court’s Future - The New York Times
by Orrin G. Hatch

Throughout his time in office, President Obama has demonstrated contempt for the constitutional principles that Justice Scalia sought to protect. Mr. Obama has proudly suggested that “empathy” for particular people and groups should motivate a judge’s decisions — a belief squarely at odds with the judicial oath to “administer justice without respect to persons.” The president has appointed two Supreme Court justices and many lower court judges who have embraced the sort of judicial activism Justice Scalia spent his career seeking to curtail.
As a senator, Mr. Obama even opposed the nominations of Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. — two eminently qualified mainstream jurists — because they expressed fidelity to the law as written, rather than a commitment to progressive policy outcomes.

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