Sen. Orrin Hatch’s impact on the Supreme Court: How a one-time lawyer from Pittsburgh shaped the highest court in the land
Supreme Court nominee Brett Kavanaugh, right, meets with Sen. Orrin Hatch, R-Utah, on Capitol Hill, Wednesday, July 11, 2018, in Washington. (AP Photo/Evan Vucci)
Washington • If not for a $6,000 pay raise Sen. Orrin Hatch supported for Supreme Court justices, he might have been one of them.
After Associate Justice Lewis Powell announced his retirement in 1987, President Ronald Reagan considered naming Hatch to the high court. Reagan's short list for the spot was so small it included only Hatch and D.C. Court of Appeals Judge Robert Bork.
Bork got the nod — though the Senate later rejected his nomination — and Hatch lost out on probably his best shot to land on the Supreme Court.
(John Duricka | AP Photo) Senate Judiciary Committee Chairman Joseph Biden, D-Del., left, and Sen. Edward Kennedy, D-Mass., right, listen during witness confirmation hearings for Supreme Court nominee Robert H. Bork, Sept. 21, 1987 in Washington. Far left is Orrin Hatch, R-Utah, and Strom Thurmond, R-S.C.
While he never made it, Hatch has played an outsized role in the nomination and confirmations for every sitting justice. With only six months left in office — Hatch chose not to run for an eighth term
— one of his legacies undoubtedly will be his impact on the court.
“Arguably more than than any other senator, Orrin Hatch has helped shape the Supreme Court for decades,” says Jonathan Turley, a law professor at The George Washington University. “Hatch’s success in the Senate is due in large part to his reputation for candid and honest advice. He has consistently voted for conservative causes, however he’s one of the dwindling number of members who works well with the opposing party.”
With President Donald Trump’s appointment of Brett Kavanaugh to fill the vacancy being left by retiring Associate Justice Anthony Kennedy, Hatch will have what is likely his last chance to help push through a nominee that lines up with the Utah Republican’s view of the Constitution.
Hatch has said he’d “lift heaven and earth”
to get Kavanaugh confirmed, a move that could tilt the court to the right for a generation.
The senator has fought for conservative nominees in the past but also worked to get some of the more liberal and moderate justices on the bench when President Bill Clinton was in office.
In 1993, Associate Justice Byron White announced his retirement, setting up the first chance for a Democratic president to pick a nominee in 26 years.
By then, Hatch, a Pittsburgh native who moved to Utah in 1969 and seven years later launched his first Senate bid, was serving as chairman of the Senate Judiciary Committee. He knew that Clinton was considering nominating Interior Secretary Bruce Babbitt, a Democrat and former Arizona governor, whom Hatch viewed more “as a politician than as a jurist,” Hatch wrote in his biography, “Square Peg: Confessions of a Citizen Senator.”
Clinton phoned Hatch shortly after the vacancy was announced to ask Hatch’s take on whom he should nominate. Babbitt would be a tough battle, Hatch warned, with many Republicans and at least one Democrat opposing him.
“I knew them both and believed that, while liberal, they were highly honest and capable jurists and their confirmation would not embarrass the president,” Hatch wrote in his book. “From my perspective, they were far better than the other likely candidates from a liberal Democrat administration.”
(Marcy Nighswander | AP Photo) Federal Appeals Judge Ruth Bader Ginsburg meets with Sen. Orrin Hatch, R-Utah, ranking Republican of the Senate Judiciary Committee, on Tuesday, June 15, 1993 on Capitol Hill. The judge went to Capitol Hill Tuesday to pay a courtesy call on the senators who will vote on her nomination. Ginsburg is President Bill Clinton's choice to fill the vacant Supreme Court seat of Byron White.
Clinton appointed Ginsburg and later Breyer, and both were confirmed with little opposition. Hatch supported both of the nominees, and they still serve today.
Two years earlier, Hatch had gone to bat to confirm Clarence Thomas after his appointment by President George H.W. Bush.
Thomas had served as a federal judge for 19 months, and no one on the American Bar Association’s Standing Committee that rates judicial nominees would say he was “well qualified” for the post.
The details of that allegation turned the usually staid confirmation hearings sexually explicit
(John Duricka | AP Photo) Federal Judge Clarence Thomas, center, meets with Senators Orrin Hatch, R-Utah, left, and John Danforth, R-Missouri on Capitol Hill in Washington, Thursday, July 12, 1991. The post is subject to Senate confirmation.
Hatch, trying to help Thomas, asked him about specific assertions from Hill, though the senator warned that he was embarrassed to have to ask the questions.
“Did you ever say in words or substance something like ‘there is a pubic hair in my Coke?’ ” Hatch asked. Thomas denied it.
"Did you ever use the term 'Long Dong Silver' in conversation with Professor Hill?" Hatch said. Thomas said no.
Thomas was later confirmed to the bench by one of the smallest margins in recent history, 52-48. Hatch supported him.
The Utah Republican saw through both of President George W. Bush’s picks for the high court — John Roberts and Samuel Alito
— but voted against both of President Barack Obama’s — Sonia Sotomayor and Elena Kagan.
Overall, Hatch has earned rave reviews from conservatives for his efforts to mold the court.
“He’s certainly been an asset to getting good people on the court,” said former Sen. Jim DeMint, R-S.C., who served for four years as president of the conservative Heritage Foundation. “He’s been a steady hand for a long time. … Just by the fact he’s been here and been evenhanded for a long time, he’s trusted by both sides of the aisle and that’s certainly helpful.”
Hatch also played a role in halting Obama’s last pick for the court and for holding the spot open for a Trump appointee.
Hatch always had a soft spot for federal Judge Merrick Garland and when a vacancy opened on the high court, Hatch called him a “consensus nominee” and that there was “no question” he could be confirmed
. Obama chose Kagan instead.
In March 2016, after the death of Associate Justice Antonin Scalia, Hatch said that Garland was a “fine man”
and a better choice than a more liberal candidate.
Obama, perhaps sensing he could win Hatch’s support, nominated Garland.
But the Utah Republican stood with his GOP colleagues in refusing to even give Garland a confirmation hearing or vote, arguing the process should wait until after the presidential election.
“President Obama has exercised his power by nominating Merrick Garland,” Hatch said in a statement
. “I stand with the majority of my Senate colleagues in concluding that the best way to exercise our advice-and-consent power is to conduct the confirmation process after the presidential election. Doing so will keep what should be a serious confirmation discussion from becoming denigrated by the toxic politics of this election season, and it will give the American people a voice in the direction of our nation’s highest court.”
Garland never got a hearing. Trump won. And then Trump handpicked his own nominee — Neil Gorsuch.
(Jose Luis Magana | AP Photo) Supreme Court Justice nominee Neil Gorsuch, right, meets with Sen. Orrin Hatch, R-Utah In Hatch's office on Capitol Hill in Washington, Wednesday, Feb. 1, 2017.
Hatch was one of Gorsuch’s top cheerleaders, lobbing softball questions his way during a hearing and lambasting his opponents and Democrats who raised tough ones.
Ron Bonjean, a Washington GOP consultant who shepherded Gorsuch through the confirmation, said it was important to have Hatch on their side.
"Senator Hatch was tremendously helpful advocating for Justice Gorsuch when his nomination was before the Senate,” Bonjean said. “His dedication and enthusiasm in backing the nominee was tremendous. Most importantly, his experience having gone through this process numerous times, was invaluable to our team.”
It’s likely Hatch will play a similar role with Kavanaugh. Although another justice could retire or die before the senator leaves office, this fall’s fight to get Kavanaugh on the bench is largely viewed as Hatch’s last chance to shape the court.
Hatch, who spoke with Trump about Kavanaugh before his announcement, is loudly touting the nominee’s vast experience and credentials.
Supreme Court nominee Brett Kavanaugh smiles during a meeting with Sen. Orrin Hatch, R-Utah, on Capitol Hill, Wednesday, July 11, 2018, in Washington. (AP Photo/Evan Vucci)
And the White House is counting on Hatch’s help to get its nominee through.
Raj Shah, a White House spokesman who is heading up the “war room” to confirm Kavanaugh, praised Hatch’s long efforts to shape the judiciary.
"Among Senator Hatch’s enduring legacies will be a leading role in the Senate in fighting for judges that interpret our laws and Constitution as they were written and intended,” Shah said.
Kavanaugh's confirmation process will be the 15th Hatch has participated in since joining the Senate.
In a short interview, Hatch said that he believes “everybody would say” that he's had a major impact on the court.
“We’ve got the very best people that we could get on the court, and it’s doing a very good job,” Hatch said of his influence. “Let me put it this way, there are a number of them who probably wouldn’t have made it had I not been in the Senate, even though they’re great men and sometimes great women, too.”
Hatch noted that his legacy with the Supreme Court isn't so easy to judge and that his support for Ginsburg and Breyer, for example, shows that he's not just fighting for conservatives but for the best jurist.
“I’m not easy to pigeonhole on these things because I’ve supported people who conservatives didn’t like; I’ve supported people liberals didn’t like,” Hatch said. “I just believe in what I’m doing.”