The Pulse: Hatch's high court argument is supremely unconvincing

Not even Vice President Biden, a 36-year Senate veteran and former chair of the Senate Judiciary Committee, would be afforded the courtesy of a Senate interview, much less a Judiciary Committee hearing, should President Obama nominate him to fill the seat left vacant by the passing of Supreme Court Justice Antonin Scalia.

Or so I was recently told by Utah's Sen. Orrin Hatch, one of the 11 Republicans on the committee who signed a letter saying they will "withhold consent on any nominee to the Supreme Court submitted by this president to fill Justice Scalia's vacancy." Ironically, the letter sought to justify that obstructionism by saying the American people should have a say in the selection, overlooking that Obama was elected twice by wide margins and popular sentiment.

A poll released last week by CNN/ORC showed that 58 percent of Americans would like to see Obama nominate someone, rather than leave it to his successor, and 66 percent say that nominee should be afforded a hearing. While there is a partisan divide evident in the data, majorities of Republicans (67 percent) and independents (69 percent) join Democrats in wanting the GOP leadership to hold hearings on the nominee.

Still no hearing will take place unless Republicans abandon their circuitous argument that they will not allow the politicization of the process while simultaneously remaining unwilling to even consider any nominee from the man their letter referred to as "this" president.

"We basically believe that this is a very politicized season right now," Hatch told me on CNN. "The important thing to note is that there have been about 160 nominations through the years to the Supreme Court. About 36 of those nominations literally never made it to the Supreme Court, and most of them didn't even have a vote on the Senate floor. So this is not something new."

But, actually, what's new is this level of obstruction.

Scalia died when Obama still had 341 days left in office. The Senate has never taken more than 125 days to vote on a nominee from the time of nomination. Several presidents have successfully filled nominations in their final year. In fact, Hatch and colleagues, including current Judiciary Chair Charles Grassley, voted to confirm Anthony Kennedy in the final year of Ronald Reagan's second term. As Scotusblog's editor and reporter Amy Howe summarized:

"The historical record does not reveal any instances since at least 1900 of the president failing to nominate and/or the Senate failing to confirm a nominee in a presidential election year because of the impending election. In that period, there were several nominations and confirmations of justices during presidential election years.

"Since 1900, six presidents have had Supreme Court vacancies to fill during an election year: William Taft, Woodrow Wilson, Herbert Hoover, Franklin D. Roosevelt, Dwight Eisenhower, and Ronald Reagan. . . . Reagan was the only one of the six not running for reelection. And four of the six - Taft, Wilson, Hoover, and Roosevelt - had a choice both nominated and confirmed during their election year."

This time those who are thumping their chests and citing the Constitution have a rather unique interpretation of Article II, Section 2, which says the president "shall nominate, and by and with the advice and consent of the Senate, shall appoint . . . judges of the Supreme Court. . . ."

I observed to Hatch that the Republican application of that language to the present circumstances is essentially: "Here is our advice - we are not giving you our consent, no matter whom you send us."

"No, that's certainly not true and, frankly, it's not 11 of us," Hatch responded. "Every Republican in the Senate feels the same way, and maybe one or two who do not, but, in a sense, if we're not going to have hearings on it, why interview people in your office?"

I asked, "Are you telling me that if the president puts forth your friend Joe Biden, and he knocks on the door for an interview, Orrin Hatch isn't opening it?"

"He can always get through my door, but it won't be for an interview for the Supreme Court," Hatch said. "And look, why? We decided that this is the way to do this, that we are in the middle of a very toxic presidential campaign. We don't want to have the court degraded."

Hatch then embarked on a series of historical references, including FDR's court-packing attempt, the unsuccessful Supreme Court nominations of Robert Bork and Douglas Ginsburg, and of Miguel Estrada's nomination to the U.S. Court of Appeals.

"Now there are still some bad feelings about all these things that went on. It wasn't Republicans who were giving Democrats a rough time; it was Democrats who set up these types of situations," he said. "Listen, if this were reversed, there would never be any Republican nominee under these circumstances.

"Now, I've got to say I'd like to get it out of politics. I think people know me. They know that I'm trying to do what's right."

When Hatch referred to Scalia as "one of the all-time great justices," I wondered what Scalia, an originalist, would think of the controversy surrounding his successor.

Geoffrey R. Stone, a University of Chicago law school professor and a former clerk for Justice William Brennan, knew Scalia from 1977 until his death.

"Although I've never discussed this question with Justice Scalia, and although he's never, to the best of my knowledge, written or spoken on the question, I would have to believe that, if he were addressing this question purely as a matter of principle and behind a curtain - that is, with no knowledge of who the president was and no knowledge of which party controlled the Senate - he would condemn the view put forth by Senator Hatch and the other Senate Republicans," Stone told me.

"Justice Scalia very much believed in the rule of law," Stone added. "In this instance, the well-established practice is clear. He would find unconscionable what is unquestionably a flagrant abuse of authority for purely partisan ends. As he made clear in a range of decisions, including, for example, those dealing with campaign finance, he was very skeptical about the legitimacy of congressional action when he suspected politically self-interested manipulation of the legislative process."

I can see that on a bracelet.

WWSD? What would Scalia do?

Michael Smerconish can be heard from 9 a.m. to noon on SiriusXM's POTUS Channel 124 and seen hosting "Smerconish" at 9 a.m. Saturdays on CNN.

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