Hatch describes, defends ‘centrist’ Rehnquist Court


It’s not easy being a conservative in Cambridge. Just ask Sen. Orrin Hatch of Utah, Chairman of the Senate Judiciary Committee, who visited Harvard Monday to speak about “The Future of the Supreme Court” at an event sponsored by the HLS Republicans and the Kennedy School’s Institute of Politics.

“It’s a real privilege for me [to be here],” Hatch said, “especially after what happened today on campus. A student came up to me and said, ‘You look just like Orrin Hatch!’ I nodded, and the student said, ‘You must hear that a lot.’ And I said, ‘As a matter of fact, I do.’ He said, ‘That must make you mad as hell!'”

Undeterred, Hatch began his talk with a claim he suggested some liberals might find surprising: “My view,” he said, “is that the [Rehnquist] court is decidedly centrist.”

“I recognize that some – particularly some in the academic community – will disagree with my assertion that the court is not conservative,” Hatch said. “But frankly, it’s nothing new for Orrin Hatch to be in opposition to the liberal members of the academic community.”

“Last term,” Hatch argued, “decisions in a number of cases emerged with a more liberal bent.” Hatch cited decisions to strike down a ban on “partial birth abortions,” uphold Miranda warnings, alter a federal law regulating sexually explicit cable television programming and permit a public-school student to bring a federal lawsuit against school officials based on harassment by other students. “These cases demonstrate that the Rehnquist Court is not a consistently conservative court, but rather it is the product of shifting and sometimes unpredictable coalitions,” Hatch said.

“All of these decisions were formed with Republican-appointed Justices who followed judicial precedent – and, I might add, the same Justices that the special-interest groups who opposed them promised us would not follow precedent, and be right-wing conservatives,” he observed.

Hatch’s position as Judiciary Committee Chairman means he will play an important role in the confirmation of any new Justices. Yet the Senator also paused to address speculation that he may be appointed to the court following the retirement of a sitting Justice. “I think if I wanted to be on the Supreme Court, Reagan would have put me there,” Hatch said. “But if you are called, you have to serve.”

Hatch said he felt a “pendulum swing” to the right was unlikely under President Bush. He indicated, however, that he thought President Bush’s nominees would likely continue the court’s recent trend of decisions limiting Congress’ power to regulate states.

Hatch stressed that he considers it important to appoint judges who “interpret the laws, not make them.” He observed that such “strict constructionism” is “easier said than done” but commented that “we have too many judges today who are creating law.”

As an example, Hatch mentioned Judge Stephen Reinhardt of the Ninth Circuit Court of Appeals. According to Hatch, Reinhardt is “is world-renowned for ignoring what the law says and saying what he thinks it ought to be, and he gets reversed almost every time by the Supreme Court. He’s a very bright guy, but he’s extremely liberal and basically feels that he should correct all the ills of society as a judge. Now, that’s not the role of a judge. They’re there to interpret the law that is made by those who have to stand for election.”

“It’s very important that judges . . . not act as super-legislators in black robes. Because the day they start doing that, the public is going to lose confidence,” Hatch said.

When asked about Bush Administration proposals to reduce involvement by the American Bar Association in judicial nominations, Hatch said he felt “politics” entered into ABA decisions during the debate over Supreme Court nominee Robert Bork, whom Hatch described as “one of the greatest legal minds in the world.” Bork was voted down by the Senate after several ABA committee-members deemed him “unqualified.”

“I don’t mind [ABA input],” Hatch said. “But I don’t want them to vet judges. I just don’t think they should be a formal part of the process.” Hatch said the ABA has promised President Bush they can prepare evaluations of potential nominees within three weeks. “If we find that the ABA is delaying judges out of pure partisanship, I’m going to be very upset about that,” Hatch said.

Hatch indicated he would find partisanship particularly disappointing because “we treated the Clinton judges very well.” While confirmation of some judges was delayed, Hatch said that the Senate confirmed only five fewer judges for President Clinton than it had for President Reagan, who had the “all-time high,” according to Hatch.

“You don’t know why people are held up – sometimes because of the FBI reports, sometimes it’s because the person is unqualified and Senators feel that way, and sometimes it’s just because the President has nominated someone that he knows the other party’s not going to take, just for political reasons.”

Hatch spoke admiringly of President Clinton’s nominees to the Supreme Court, Justices Ruth Bader Ginsburg ’56-’58 and Stephen Breyer ’64. “I was the one who suggested that [President Clinton] nominate Stephen Breyer,” Hatch said. Hatch first met Justice Breyer when he worked as Chief of Staff for the Senate Judiciary Committee under Massachusetts Senator Ted Kennedy.

Though Hatch said he “disagreed” with Breyer on many issues, he described Breyer as a “wonderful man” and “an exceptional judge.”

“He really loves the Supreme Court,” Hatch said. “He knows how important it is for that court to be independent, for the judiciary to be independent.” Hatch cited Breyer’s decision to join the majority on portions of the Bush v. Gore decision so as to make the vote 7-2, rather than 5-4, as an indication of Breyer’s appreciation for the importance of preserving the court’s public legitimacy and independence.

When asked about his own views on the controversial Bush v. Gore decision, Hatch said, “In my view, it was legitimate. In the end, it came down to the law.”

“The greatest thing about it,” Hatch said, “is look at our country. We’ve accepted it, we’ve moved forward, we didn’t have riots in the streets.” Hatch described this show of respect for law as an “example to all the world of how a republic works.”

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