Today the U.S. Supreme Court is making controversial decisions. Could Utah Sen. Orrin Hatch have been a U.S. Supreme Court Justice? Yes, it could have happened. Sen. Hatch might have been Justice Hatch, along with Justice Clarence Thomas, for 30 years.
Hatch died April 24 at age 88. He was a U.S. senator for 42 years — the longest serving Republican senator ever. Hatch sponsored or co-sponsored over 1,200 pieces of legislation. He served as Senate president pro tempore for four years – third in line to the presidency after the vice president and House speaker.
But, in 1987, Hatch had hoped to become Utah’s second U.S. Supreme Court justice. However, in 1988, President Ronald Reagan chose Anthony Kennedy to be his third choice to fill an open seat. Three years later, in 1991, as a senator on the Judiciary Committee, Hatch saved the nomination of Clarence Thomas — who has now served over 30 years on the nation’s highest court.
I first met Hatch in 1976. He had won his party’s nomination for the U.S. Senate at age 42, and later that year defeated Sen. Frank Moss — a three-term Utah Democrat.
During the next decade, Hatch was seemingly everywhere. Local media. National media. C-SPAN. Floor speeches. Committee hearings. Even movie cameo appearances. He was an activist conservative.
In 1988, Hatch saw a unique and strategic opportunity. After his Senate colleagues rejected Reagan’s nomination of Judge Robert Bork on a controversial a 58-42 vote, and after Judge Douglas Ginsberg’s nomination was quickly withdrawn, Hatch saw a potential win-win opportunity for himself and Ronald Reagan.
Hatch was a lawyer very knowledgeable of Supreme Court cases. He was quick to cite court decisions that he felt had been settled wrongly. And he was aware that there had only been one Supreme Court justice (George Sutherland) ever to serve from Utah.
He had cultivated friendships with fellow Republicans, but also with Senate Democratic colleagues – especially the influential Ted Kennedy. Reagan wanted to fill the open seat quickly as he was about to enter his last year as president. Democrats then controlled the Senate. Gridlock was apparent.
Hatch reasoned that his Senate colleagues might avoid gridlock by voting to confirm a fellow senator to serve on the Supreme Court. He communicated his thinking to the White House. He had a good relationship with Reagan who, in 1982, had come to Utah to help him win re-election. However, a Hatch nomination was never submitted to the Senate. Why?
Hatch told me that an aide close to Reagan – not the president – had confided to Hatch that the White House was inclined to nominate a sitting federal judge to the Supreme Court rather than a member of Congress with no experience as a sitting judge. However, if Hatch was willing to be appointed to serve as a federal judge briefly, then he could be nominated quickly for the Supreme Court when a future opening occurred.
Hatch was politically smart. Given the timing and the unknown future, he decided not to leave the Senate. Soon afterward, Judge Anthony Kennedy was nominated and confirmed in 1988. (In 1991, Clarence Thomas, then a federal judge for only 16 months, was nominated and confirmed on a close 52-48 Senate vote).
Hatch would eventually serve seven Senate terms – 42 years.
In total, Hatch would vote to confirm 10 nominees to the high court. His approval in 1993 and 1994 of Ruth Bader Ginsburg and Stephen Breyer were persuasive with his Republican in confirming Democrat Bill Clinton’s nominees in the partisan Senate.
During 2015-2018, his years of seniority had made him the Senate president pro tempore as well as a powerful Judiciary Committee member. He opposed the nomination of Merrick Garland, and helped to confirm the appointments of Neil Gorsuch and Brett Kavanaugh to the Supreme Court.
Many questions. What if Orrin Hatch had been a Supreme Court Justice for over 30 years — from 1988 until possibly today?
How would a Justice Hatch have been different from Justice Anthony Kennedy? Would Ruth Bader Ginsburg and Stephen Breyer have been confirmed by the Senate easily to be Supreme Court justices? Would the progressive Americans With Disabilities Act and the Children’s Health Insurance Program have been easily enacted?
Would a Justice Hatch have partnered with Justice Thomas — today the court’s senior justice — for over three decades? (Evidence is apparent that he would have been an “activist judge” — as Thomas is today.)
Finally, if Orrin Hatch were alive today as Justice Hatch, then how might he have ruled in this month of June’s significant U.S. Supreme Court decisions?
Tim Chambless
Tim Chambless, Ph.D., taught courses for decades in the University of Utah’s Department of Political Science and Hinckley Institute of Politics. He has taught American public affairs and politics for the U.’s Osher Lifelong Learning Institute since 2007.