WASHINGTON – Sen. Orrin Hatch (R-Utah) today blasted President Obama for nominating activist judges for the federal judiciary, saying nominees such as Berkeley Professor Goodwin Liu show the administration has little regard for the Constitution.

 “I do not believe that the Senate owes President any deference with regard to nominees, like Professor Liu, whose records clearly establish an activist judicial philosophy,” Hatch said in a speech to the Capitol Hill lawyers chapter and Catholic University student chapter of the Federalist Society. “A nominee whose record clearly shows that he would be an activist judge is not qualified to be on the federal bench.”

 Hatch said “the Constitution belongs to the people, not to judges. The Constitution may properly be controlled only by the people, not by judges” who use empathy, personal feelings and other things outside of the document to alter the meaning of what is written and the founders intended.   

A copy of Hatch’s speech, as prepared for delivery, follows:

            Thank you for that introduction and for the chance to be with you for a little while today.  The Federalist Society and I go way back and, after nearly 30 years, it plays a significant and critical role in educating our fellow citizens and in defending liberty. I am so glad that there are both student and lawyer division chapters thriving in the Washington area, including at Catholic University and right here on Capitol Hill.

I would like to look at the current state of the judicial appointment process, but I will not jump right into facts and statistics the way the media and many advocates do.  Whoever said that liars figure and figures lie might well have had the judicial confirmation process in mind.  Mark Twain also said something about lies and statistics, but I won’t give the full quote so that I may avoid another bad word for which I would have to repent.

As you may know, I have served on the Judiciary Committee since I was first elected in 1976 and chaired the committee for eight years.  Such seemingly long spans of time, of course, are relative.  Justice Oliver Wendell Holmes served for 31 years on the Supreme Court until he was 90 years old.  In case you are wondering, no, I did not attend his confirmation hearing.  But it is said that toward the end of his long career, he and another Justice took a walk and passed a beautiful, buxom, blonde woman.  Justice Holmes looked at her, signed, and said: “Ah, if I were only 70 again.”

During my service here, the Senate has confirmed nearly 1,600 judges to life-tenured federal courts, including every current member of the Supreme Court, and considered others who were not confirmed.  That is a lot of judges, a lot of confirmations.  In all that time, through all of those nominees, hearings, debates, and votes, one thing has never changed.  The conflict over judicial appointments is, and will remain, a conflict over judicial power. 

            A lawyer died and went to heaven on a particularly busy day, and he found himself waiting in a long line to get through the Pearly Gate.  After an hour or so, he saw a man in a black robe walk to the front of the line, say something to St. Peter, and walk right in.  When it was his turn, the lawyer said he was certainly grateful to be there instead of the other place, but asked why that judge had been given special treatment.  St. Peter chuckled and said, “Oh, that was really God.  He sometimes thinks he’s a federal judge.”

Let me briefly describe the two sides in this conflict over judicial power.  Federal judges have two basic tasks.  They interpret and then apply written law to decide actual cases.  Interpreting statutes and the Constitution, however, involves much more than simply reading what they say.  After all, in Marbury v. Madison, Chief Justice Marshall described the duty of courts not as saying what the law says, but as saying what the law is.  What are statutes and the Constitution?  They are the meaning of their words.

So the debate over judicial power is over how much control judges may have over the meaning of statutes, and especially of the Constitution.  That meaning comes either from those who made them law in the first place, or from the judges who use them to decide cases.

I believe that, in our system of government, the people and their elected representatives alone have authority to make law.  That includes not only choosing the words of statutes and the Constitution but, more importantly, determining the meaning of those words.  As a result, judges have no power to change either the words or the meaning of our laws.  Three principles lead me to this conviction.

First, the people are sovereign in a republic.  Their sovereignty certainly includes, in the words of the Declaration of Independence, the right to alter or abolish government itself.  But in his 1796 farewell address, President George Washington identified an aspect of that sovereignty directly relevant to my topic today.  He said: “The basis of our political systems is the right of the people to make and to alter their constitutions of government.  But the Constitution which at any time exists, till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all.” 

That is not just a good idea or one of many comparable options, at least not if we want to keep liberty intact.  No, this is the necessary condition for liberty.  The right to make and alter the Constitution would mean nothing if the people could choose only its words, but judges could decide its meaning.  The Constitution would not be obligatory upon judges, let alone sacredly so, if the Constitution means whatever judges say it means. 

A second principle is that the Constitution separates government power into three branches.  For that division to be worth anything, the categories of executive, legislative, and judicial power must be different.  Just as President Washington said that the people’s control of the Constitution is the basis of our political system, so Alexander Hamilton argued that there is no liberty if judicial power is not separated and distinct from legislative or executive power.  In other words, the judicial power to interpret the law must be fundamentally different from the legislative power to make the law.

A third principle is quite simple.  The Constitution is law that governs government, law that limits government in order to protect liberty.  The judiciary is part of the government that the Constitution governs.  As Marshall also wrote in Marbury v. Madison, the Constitution is intended to be as much a rule for courts as for the legislature.  The Constitution cannot control judges if judges control the Constitution.

So one side in this conflict, the side informed by the essential principles of our system of government, says that judges do not have authority to change the words or the meaning of statutes or the Constitution.  They must take the law as they find it, do their best to discover the meaning it already has, and apply it to decide actual cases.

The other side says that judges may not be able to change the words, but they can change the meaning.  President Obama is in this corner of the ring.  I cannot recall a President who was clearer about his view of the power and role of judges and, therefore, about the kind of judge he will appoint to the federal bench.

In 2005, for example, then-Senator Obama opposed the nomination of Chief Justice John Roberts.  He argued on the Senate floor that judges decide cases based on their “deepest values…core concerns…broader perspectives on how the world works…the depth and breadth of [their] empathy…[and] what is in the judge’s heart.”  As a presidential candidate in 2007, Senator Obama told the Planned Parenthood Action Fund that judges decide cases based on what is in their heart, on “their broader vision of what America should be,” and by their empathy for certain groups.  These, he said, are the criteria he would use to appoint federal judges.

This is one campaign promise that President Obama has certainly kept.  He continues to nominate men and women who have the very kind of activist judicial philosophy that President Obama described and said he would use.  He continues to choose judicial nominees who believe that judges may find the meaning of the law outside of the law. 

Let me give you just one example, Berkeley Professor Goodwin Liu, who has been nominated to the U.S. Court of Appeals for the Ninth Circuit.  Of the 27 opinions announced by the Supreme Court so far this term, eight of them are in cases from the Ninth Circuit, seven of those are reversals, one of those was per curiam, and the total vote on the remaining six reversals was a whopping 49-1.  It would be tough to make that activist court out on the Left Coast any worse, but it seems that President Obama is up for the challenge.

I’ve been through enough confirmations to know that a nominee’s record does not always clearly define what kind of judge he will be.  Professor Liu is not one of those nominees. He has written and spoken, extensively and directly, about how judges should go about their judging. 

He has written that judges are engaged in what he calls an ongoing search for constitutional meaning which, to be quite honest, is a bad sign right off the bat.  Judges, he says, may rely on the original meaning of the Constitution but they are free to find the Constitution’s meaning in places such as the following: passionate dialogue and debate, changes in social circumstances and cultural understandings, an awareness of evolving norms and social understandings, as well as social movements, practices, and conditions.

How about that?  A veritable all-you-can-eat smorgasbord of constitutional delights.  And guess what?  The only people with reservations in this establishment are – you guessed it – judges.  Judges get to say whether certain dialogue or debate is sufficiently passionate to count.  Judges get to choose which social circumstances are worth considering, how those circumstances are changing, and whether those changes matter.  Judges identify the relevant cultural understandings and norms, how they are evolving, and what difference it all makes.  And judges are the ones who say what social movements and practices are important and how they impact the meaning of the Constitution. 

Writing in the Stanford Law Review, Professor Liu described the task of judging this way: “The problem for courts is to determine, at the moment of decision, whether our collective values on a given issue have converged to a degree that they can be persuasively crystallized and credibly absorbed into legal doctrine.”  Try saying that one three times fast!  This is simply a much longer and more convoluted version of Chief Justice Charles Evans Hughes’ famous assertion that the Constitution is whatever the judges say it is. 

You may have noticed that Professor Liu’s judicial philosophy is entirely in sync with President Obama’s.  Evolving norms, a judge’s empathy, social conditions, what is in a judge’s heart, cultural understandings, a judge’s vision of what America should be, crystallized and converged collective values, or a judge’s core concerns.  These are all the same thing.  Believe you me, the liberal intelligentsia is skilled at nothing if not coming up with new ways to package old and dangerous ideas.  Call it whatever you want, but each one of these is simply a variation on the theme that our laws mean whatever judges say they mean. 

I hope you also noticed that this activist judicial philosophy is entirely at odds with the principles underlying our system of government.  Either the people or judges have authority to alter the Constitution.  The people no longer have that authority if the Constitution’s meaning depends on what is in a judge’s heart or on a judge’s perception of evolving social norms.  This activist judicial philosophy is fundamentally at odds with what President Washington said was the very basis of our political system. 

And that brings me back to how the judicial appointment process is operating today.  The conflict is indeed over the power of judges, between two fundamentally different judicial philosophies.  The conflict is between judicial restraint, in which the people control the meaning of our laws, and judicial activism, in which judges control it. 

 

Last year was the 20^th anniversary of Judge Robert Bork’s book The Tempting of America: The Political Seduction of the Law.  Judge Bork and I today co-chair the Federalist Society’s Board of Visitors.  When I reviewed that book for National Review in December 1989, I wrote that the central legal issue of our time is this: Are we to be governed by our elected representatives or by an unelected judiciary?  That question is still the central legal issue of our time and remains at the heart of the continuing conflict over the appointment of federal judges. 

The Constitution provides both substantive and procedural norms for the judicial appointment process.  As I have briefly reviewed here today, substantive principles such as popular sovereignty, the separation of powers, and limited government define the kind of judge our system of government requires. 

At the same time, the Constitution gives the power to nominate and appoint federal judges to the President.  The Senate’s role of advice and consent is a check on the President’s appointment power, but not a substitute for it.  I have reconciled these norms by concluding that the Senate owes some deference to the President so long as the President nominates individuals who are qualified by their legal experience and, more importantly, by their judicial philosophy.  In other words, the Senate’s procedural duty of deference depends on the President’s substantive duty to nominate individuals with an appropriate understanding of the power and role of judges.

The current judicial appointment process must be evaluated against this backdrop.  I do not believe that the Senate owes President Obama any deference with regard to nominees, like Professor Liu, whose records clearly establish an activist judicial philosophy.  A nominee whose record clearly shows that he would be an activist judge is not qualified to be on the federal bench.

During the 111^th Congress, I was more than a little amused by doomsday predictions and charges of widespread confirmation obstruction.  I found myself wishing that our tiny band of 40 or 41 Republicans really had that much power.  The truth is that the judicial confirmation process is much more complicated than most reporters, pundits, or advocates have the integrity to admit.  Many variables affect which nominees might be confirmed as well as when, how quickly, or how easily.  These include when and how many individuals a President nominates, the legislative agenda of the President and Senate, the current political or ideological climate, as well as the controversial issues raised by individual nominees’ records.

For whatever reason, President Obama made fewer judicial nominations than his predecessors in their first two years.  In fact, the Senate has had nominees for even half of the existing judicial vacancies just two percent of the time that President Obama has been in office.  Nonetheless, the Senate confirmed a higher percentage of his appeals court nominees in the 111^thCongress than it did in President Bush’s first two years.  There were no filibusters of his judicial nominees either, something which prevented confirmation of several of President Bush’s appeals court nominees.  And a higher percentage of President Obama’s judicial nominees have been confirmed by unanimous consent, without even a roll call vote.

At least two-thirds of the nominations that expired at the end of the 111^th Congress were made or reported from the Judiciary Committee after Election Day, too late to be considered last year.  Most of the nominees President Obama has re-submitted are not particularly controversial, and ten of them have already been confirmed.

And do not forget that the 111^th Congress saw not one, but two, Supreme Court nominations.  The Senate traditionally suspends consideration of other judicial nominees during the three months it typically takes to fill a Supreme Court vacancy.  While the Sotomayor and Kagan confirmations therefore consumed nearly six months of confirmation time in the 111^th Congress, the Senate still confirmed more judicial nominees than in the 109^th Congress, the previous one which handled two Republican Supreme Court nominees.

It is very common to focus only on the individuals a President nominates to the federal bench rather than on the judges those nominees would replace.  But an interesting report issued by the Brookings Institute just a couple of months ago found that President Obama is already having a greater impact than either President Bush or President Clinton in changing the composition of the federal appeals courts.  By replacing more restrained Republican judges with his own more activist nominees, President Obama has had an impact on the judiciary that the numbers themselves do not reveal.

            While we have to get the facts and the numbers right, however, the real conflict over President Obama’s judicial nominees remains the conflict over judicial power.  Our liberty requires the nomination and appointment of judges who will not take from the people their sovereignty over the Constitution.  Our liberty requires judges who will be bound by what the law says and by what it already means.  This debate may be conducted in the hallowed halls of the Senate, but do not think for a minute that the result will not affect each and every American’s life and liberty.  If you think that what is in a judge’s heart is enough to defend our liberty, I have some ocean-front property in the Utah desert to sell you.  It should take more than an active imagination and a political agenda properly to interpret the Constitution.  I know many people whose concerns, values, perceptions, and cultural understandings I respect but that does not mean I would vote to confirm them to the federal bench.

The Constitution belongs to the people, not to judges.  The Constitution may properly be controlled only by the people, not by judges.  Our liberty depends on it as much today as it always has.  America’s founders believed these principles, and the debate must continually be joined, especially in the process of appointing judges who will serve for life on the federal bench.  The Federalist Society continues to be at the center of this debate and I thank you for inviting me to share this time with you today.