Imagine the 2012 presidential election had turned out differently. Mitt Romney was elected president, but in the next midterm, the Democrats retained majority control in the Senate. In February 2016, as President Romney is gearing up for a tough re-election campaign, and Democrats are salivating at the opportunity to defeat his bid for re-election (as Republicans did to Barack Obama in 2012), Justice Antonin Scalia passes away.
With Democratic senators telling the president not to nominate a justice but let the people decide through the 2016 presidential election, President Romney nominates Sen. Orrin Hatch. How would nominee Hatch feel if fellow senators refused to meet with him, declared that he would receive no hearings, and that there would not be a vote on him as a nominee? Fellow Republican senators would loudly criticize the majority Democrats for demeaning the nominee by not even considering his nomination.
This little counter-scenario shows that there is no principle here. It is only partisan politics, regardless of which party is in control. And that is the problem with the Supreme Court nomination process today. While politics has always played a role in judicial selection, today's iteration of the process has gone into dangerous territory.
The most surprising aspect of this development is the behavior of our senior senator. Since he has been a U.S. senator, Orrin Hatch typically has been respectful of the Supreme Court and the judicial selection process that produces its members. He cooperated with President Clinton in 1993 and 1994 to effect a smooth confirmation process for Ruth Bader Ginsburg and Stephen Breyer. He has urged his Republican colleagues to respect the process, even when they didn't particular like the nominees.
Now, however, as he nears the end of his service in the U.S. Senate, Hatch is betraying his own past in Supreme Court nominations. This has been some time coming. Rather than cooperate with President Obama on his two confirmation processes for Sonia Sotomayor and Elena Kagan, Hatch voted no. It was a sad day to see someone who for many years sought bipartisanship becoming yet another partisan and rejecting nominees who were well qualified.
But Hatch has now gone even further. Rather than leading his party on judicial matters, he is joining others who won't give the nominee at least a fair hearing. He is adding his voice to the chorus who see the courts as merely partisan tools. That is a shameful end to a distinguished career.
Hatch should do the same things he has done with Supreme Court nominees over his career. That is have a courtesy call with the nominee, publicly call for confirmation hearings to be held in a timely manner, cooperate with the administration in investigating the nominee, and then urge both a committee and floor vote on the nominee. It should not matter who the nominee is or who the president is. Hatch should do the right thing in respecting the process, regardless of his feelings about the nominee or the president.
After all that, if Hatch feels Judge Merrick Garland does not merit Supreme Court appointment, he should vote against him. Some Republicans are arguing that the whole process would be a waste of money if Republicans ultimately vote against the nominee. If the goal is saving money, then we should simply allow the president to make all nominations and skip the Senate confirmation process. That would save a lot of money. But the constitutional intent is for the Senate to check the president's appointment power. It is not a cheap or efficient way to do things, but it does prevent tyranny. However, for the Senate to refuse to do its job at all is a derogation of duty.
We urge Hatch to be a leader in this process and not a follower. We encourage him to become the bipartisan bridge and restore the Supreme Court nomination process to its actual function of filling the Supreme Court rather than playing partisan politics. That would be the fitting end to his career.
Scott Howell is former Utah Senate Minority Leader and the 2012 U.S. Senate Democratic candidate. Richard Davis is the author of "Electing Justice: Fixing the Supreme Court Nomination Process."