Utah’s two U.S. senators, Orrin Hatch and Mike Lee, both members of the Senate Judiciary Committee, have turned the judicial-nominating process and the constitutional concept of balance of powers into a joke.
Their latest clown trick was to join the other committee Republicans in approving for full Senate consideration President Donald Trump’s nominee to the U.S. District Court in Alabama.
Brett J. Talley is a Harvard Law School graduate, but, at 36, he has been an attorney for only three years and has never tried a case in court. He has been given a “not qualified” rating by the American Bar Association.
But most troubling is his blatantly partisan comments on his Steve Bannon-like blog.
He has referred to Hillary Rodham Clinton as “Hillary Rotten Clinton” and called efforts at gun control legislation after the Sandy Hook Elementary School shooting the “greatest attack on our constitutional freedoms in our lifetime.” He also urged his readers to join the National Rifle Association.
But as long as he shows himself to be a right-winger, he is perfectly qualified to have a lifetime appointment to the federal bench, according to Trumpism and our two esteemed senators who tout themselves as constitutional experts.
Talley’s blogs should at least raise concerns about judicial temperament, which used to be a factor in addressing the qualifications of prospective judges.
“When I look at judicial temperament, I see it as how the judge appears to people,” Utah State Bar President John Lund told me. “When a client goes with me to court and watches the judge process the case, and the judge seems interested in what lawyers have to say, and is open to their arguments, and is patient with them, and does not demonstrate absolute opinions in the court, but shows open-mindedness, it’s easier for a client to accept a ruling that goes the other way. If a judge shows a strong point of view one way or another, then rules for the other side, it affects the view of the quality of the decision-making.”
But throw judicial temperament and fair- mindedness out the window. It appears that to Hatch and Lee, and many of their fellow Senate Republicans, being a partisan hack is qualifying enough.
This would be the same Hatch and Lee who agreed to hold up most of President Barack Obama’s judicial nominees because he was a Democratic president. The two Utah senators famously went along with Senate Majority Leader Mitch McConnell’s ploy to not even hold a hearing on Obama’s nominee to the U.S. Supreme Court, Merrick Garland, a moderate who was easily confirmed by a bipartisan Senate as a Court of Appeals judge.
Hatch had even said Garland would be a great pick to replace the late Antonin Scalia before Obama nominated him and the choice became a political scrum for Republicans.
To justify his partisan genuflection to the Republicans’ rejection of everything Obama, Hatch wrote an op-ed for the Deseret News noting that he had met with Garland personally and it did not change his position of withholding a hearing on the nominee’s merits until after the 2016 election.
Unfortunately for Hatch, the Deseret News mistakenly posted his already written op-ed before he actually had met with Garland, demonstrating how phony the whole confirmation manner had become.
Hatch has a long history of playing games with Democratic presidents’ judicial nominees.
In 1999, Hatch flirted with a constitutional crisis by holding up President Bill Clinton’s nominees unless Clinton named Hatch’s friend and former employee, Ted Stewart, to Utah’s U.S. District Court, despite the fact Stewart had never tried a case in court. Instead, his career was as a political bureaucrat for Hatch, former Utah Congressman Jim Hansen and former Gov. Mike Leavitt.
“We had a Democratic president. We should have had a say in the judicial nomination,” said Scott Howell, who at the time was the minority leader in the Utah Senate. “But President Clinton told me he had no choice. Orrin would hold up all his appointments unless he got Stewart.”
Democrats in the U.S. Senate were so outraged at Hatch’s tactics that they filibustered the vote on Stewart’s confirmation. They acquiesced when Hatch relented and allowed a couple of other Clinton nominees to have a confirmation vote.
“I couldn’t say this is a perversion of the process,” University of Massachusetts political science professor Sheldon Goldman told The Washington Post at the time. “But I could say you are going to the brink of a constitutional crisis when you say, ‘My man or nothing moves.’ That’s ominous.”
For Lee, who also went along with blocking Obama nominees and now is all in on Talley, he seems to have adopted the view of his former boss, U.S. Supreme Court Justice Samuel Alito, arguably the most blatantly partisan member of high court. Alito has been the loudest champion of the Citizens United decision, which basically has turned the election process into spoils going to the highest bidder. He also has been a guest at events sponsored by the Koch brothers, the conservative billionaire industrialists who have spread their tentacles across the political spectrum to expand their influence.
So much for upholding constitutional principles.