Editore"s Note
Tilting at Windmills

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May 4, 2009

'CODE' AND THE COURT.... Sen. Orrin Hatch (R-Utah) appeared on ABC News' "This Week" yesterday to discuss the looming Supreme Court vacancy. George Stephanopoulos showed a video of President Obama describing his ideal justice as a person of intelligence, excellence, integrity, and empathy. "I will seek someone who understands that justice isn't about some abstract legal theory or a footnote in a casebook," the president said. "It is also about how our laws affect the daily realities of people's lives."

Stephanopoulos asked Hatch what he thought of Obama's comments. The Utah Republican wasn't happy.

"Well, it's a matter of great concern. If he's saying that he wants to pick people who will take sides -- he's also said that a judge has to be a person of empathy. What does that mean? Usually that's a code word for an activist judge.

"But he also said that he's going to select judges on the basis of their personal politics, their personal feelings, their personal preferences. Now, you know, those are all code words for an activist judge, who is going to, you know, be partisan on the bench."

There are a few key angles to this. First, Hatch is already laying the groundwork for Republican obstructionism, suggesting the president's own search criteria for a justice will necessarily make the nominee some kind of "activist."

Second, if we really want to talk about "activist" judges, Hatch may want to take a closer look at the current Roberts court.

And third, Obama hasn't used "code" in describing the qualities he's looking for in a justice. This is using code.

At a press conference two days after his re-election, President Bush was asked about what sort of Supreme Court justice he might nominate if and when the ailing Chief Justice William H. Rehnquist retires. Mr. Bush repeated the pledge he made in the presidential debates: "I would pick people who would be strict constructionists."

Nevertheless, Hatch is supposed to be one of the more amenable and cooperative Republicans left on the Senate Judiciary Committee. His comments yesterday were hardly reassuring.

Steve Benen 8:00 AM Permalink | Trackbacks | Comments (22)

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Comments

More to the point, Steve, the phrase "activist judge" is itself code. Hatch has got his head pretty far up his ass if he doesn't understand the irony of what he said. (Of course, he may understand perfectly well the game he's playing.)

Posted by: Tom on May 4, 2009 at 8:15 AM | PERMALINK

What they're signaling is that it really doesn't matter who Obama nominates, they're just in it for the fight, the opportunity to villify and for the theatre. Which means they're still not getting any closer to "getting it."

Grow up and move on, GOP. Evolve or die.

Posted by: zoe kentucky on May 4, 2009 at 8:29 AM | PERMALINK

I have despised Orrin Hatch since his Judiciary Committee refused even to hold hearings for 43 Clinton nominees. Hatch and the Republicans are going to oppose, and probably filibuster, any nominee who is not a member of the Federalist Society,

I hope someone in the DNC or the DSCC is pulling together video clips of Republicans bleating, "Up or down! Up or down!" and of them saying how "unconstitutional" a filibuster of a judicial nominee is.

And I hope that as soon as the opposition begins, the Obama surrogates will be given talking points so that they challenge the members of the corporate-controlled media, asking them why they don't ask Republicans why it's okay to filibuster nominees from a Democratic president but it's a Constitutional crisis to challenge the nominees of a Republican president.


Posted by: SteveT on May 4, 2009 at 8:31 AM | PERMALINK

Its almost like the Republicans are determined to look more foolish every day. We don't know who Obama is going to appoint but we sure don't like Her/Him. This is taking the party of NO! to new extremes trying to put a time warp on their views . Whatever Obama might think of doing in the future we are definately against it -no matter what. Then they sit and ponder why their ranks are shrinking.
BiPartisan My Ass. BPMA.

Posted by: John R on May 4, 2009 at 8:35 AM | PERMALINK

The Republicans will obstruct whomever Obama puts up--aside from someone of the Alito/Roberts fold--simply because it is Obama, and not them, who get to appoint the Justice.

It does not matter, really, what a Candidate's credentials are. The Republicans' natural response, instinct, is to obstruct--just because it's a Democratic President who is doing the appointing, and not them. It has ever been about who has the power, and it's not them, so they obstruct.

Posted by: terraformer on May 4, 2009 at 8:43 AM | PERMALINK

"But he also said that he's going to select judges on the basis of their personal politics, their personal feelings, their personal preferences. Now, you know, those are all code words for an activist judge, who is going to, you know, be partisan on the bench."


I thought I was paying pretty close attention, and I don't recall the president saying any of this. Did I miss an interview, or did Hatch make this whole paragraph up out of whole cloth?

I think I can guess the answer. Why has nobody challenged him on when the president said such things?

Posted by: atlliberal on May 4, 2009 at 9:17 AM | PERMALINK

I'm a "constituent" of Orrin Hatch's. "Amenable and cooperative" are not two words I would use in conjunction with his name. Don't expect anything other than childish temper tantrums out of the R party over whoever the nominee is.

Posted by: Michigoose on May 4, 2009 at 9:24 AM | PERMALINK

I'd suggest that His Honor Justice Souter not plan on an early exit from DC.

Posted by: jhm on May 4, 2009 at 10:00 AM | PERMALINK

Why wasn't Hatch asked,"Do you mean that Republicans don't have any empathy for other people?" and, "Does this mean that you will only vote for judicial nominees who demonstrably have no empathy for others?"

Charles

Posted by: charles on May 4, 2009 at 10:02 AM | PERMALINK

Well, duh. Wait till someone on the GOP floats a compromise candidate name of Jay Bybee.

Posted by: paul on May 4, 2009 at 10:08 AM | PERMALINK

Well, "precedent" may still have some meaning with lawyers but it has little in politics, and even less among the general populace; we are a short-attention span nation. Therefore while it may be somewhat satisfying (and extremely common) to gnash teeth at the injustice of republican's stance on filibustering supreme court nominees flip flopping, it has little relevance outside of policy wonks. That ammunition isn't going to be the stuff that counts.

The simple truth is that the Reeps currently in congress are just going to oppose everything for the sake of opposing everything, because they are out of ideas. The way to combat the insanity is to promote their rivals in the 2010 elections, and whinging about the injustice of their opinion does nothing to further the cause.

Posted by: senevada on May 4, 2009 at 10:19 AM | PERMALINK

I guess we can rule out King Solomon and Jesus.

Posted by: moooo on May 4, 2009 at 10:51 AM | PERMALINK

"I will seek someone who understands that justice isn't about some abstract legal theory or a footnote in a casebook," the president said. "It is also about how our laws affect the daily realities of people's lives."

I like this. There are often many equally valid legal ways to rule on a case with results that vary from draconian to anarchic. I would think the "daily realities" should be on every judge's mind.

I'm not a legal scholar... but it seems to me that law and judgements are as much about social philosophy as exercises in legal logic... and that's always been the case. Even appeals to "logic" are themselves driven by social philosophy. Feh.

Posted by: inkadu on May 4, 2009 at 11:03 AM | PERMALINK

Hatch would rather a justice which has empathy with the original framers of the constitution. Just read their minds and figure out what they meant by reading the constitution.

This fits in with those who believe the Bible was originally written in modern English and has a singular meaning.

Posted by: tomj on May 4, 2009 at 11:18 AM | PERMALINK

No white male need apply.

Posted by: Luther on May 4, 2009 at 11:20 AM | PERMALINK

We have the rational, reasonable justices, who base their opinions strictly on the Constitution, and then we have the touchy-feely liberal justices who want to conduct social engineering experiments at everyone's expense.

Since none of you can follow a factual argument, you can't figure out someone like Scalia, who never lets his personal opinions or emotions color his opinions. The One never met a bleeding heart he didn't like so he'll pick some lefty who thinks the job of the Supreme Court is to feel sorry for people.

After what you guys did to Harriet Miers, it's going to be fun to listen to liberals whine at the GOP refusing to let you hijack the court.

Posted by: Myke K on May 4, 2009 at 11:21 AM | PERMALINK

"No white male need apply."

Yes, because if there's one group that is woefully under-represented in the Obama administration, it's that demographic.

Except the VP,

and at Defense,

and Treasury,

and Agriculture,

and Education,

and HUD,

and Transportation,

and the DNI, National Security Advisor, CIA director, FEMA director, OMB director, and the White House Press Secretary.

Yep, white guys are so oppressed in this country.

Posted by: 2Manchu on May 4, 2009 at 11:37 AM | PERMALINK

In his memoir, Hatch brags that Clinton came to him and asked for names of judges who were sufficiently far to the right to get through a nomination battle. Hatch, he claims, suggested Breyer and Ginsburg.

So, basically, this is just Hatch complaining that Obama shouldn't break precedent and fail to allow a Republican, preferably himself, to be the one to select the nominee. That's how the last eleven justices made it to the Court, so now it's a hallowed tradition.

Posted by: nicteis on May 4, 2009 at 11:55 AM | PERMALINK

On WBBM, they played Hatch's comment over and over again. You'd never guess that Leahy replied to it in this way:

We've had a very activist court. We had an activist court that made a decision that allowed employers to covertly discriminate against women so that women wouldn't get paid equally. We in the Congress reversed that with a law, in fact, the first law that President Obama signed into law. I think he wants to have somebody to treat people all the same, whether they're Republicans, or Democrat, men, women, or whatever they may be.

So it's okay -- at least on WBBM -- to spend the whole day with nothing but a Republican talking about 'activist judges' being appointed to the judiciary by Democrats, without a single contrary voice.

Is it any wonder that someone might come away from such coverage thinking Democrats only wanted 'activists' for the bench whereas Republicans only wanted 'strict constructionists'?

Posted by: leo on May 4, 2009 at 11:59 AM | PERMALINK

Yep, Leahy did a great job responding to Hatch, during whose comments I almost threw something destructive at my TV (but didn't, can't afford a new one). The Rs are NOT going to be constructive re any judges, or anything, for that matter.

"Code word", "activist". Be prepared to hear those over and over from the Rs.

Posted by: Hannah on May 4, 2009 at 12:49 PM | PERMALINK

". . .someone like Scalia, who never lets his personal opinions or emotions color his opinions."

Guess Myke K never heard of "Bush vs. Gore"

Sen. Leahy is a gentlemen, but one senses he is really tired of the twenty odd years of Orrin's self serving B.S. he has had to put up with on the Senate Judiciary Committee.

Posted by: J. Frank Parnell on May 4, 2009 at 1:01 PM | PERMALINK

I guess that finally kills the lie about "compassionate" conservatism

Posted by: Always Hopeful on May 5, 2009 at 12:40 AM | PERMALINK




 

 

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