One of Senator Orrin Hatch’s fondest memories of the late Justice Antonin Scalia involves cigarettes.
The two were bantering in Hatch’s office on the first floor of the Senate Russell office building, as Hatch tells it. Scalia pulled out a cigarette. It was a habit he never kicked, one mentioned in the physician’s report following his death in February.
Scalia reached into his pocket, dug out the box of Marlboros. He threw them at Hatch. “Okay! Enough,” Scalia said. He winked. “But that doesn’t include cigars, does it?”
Hatch chuckles at the memory. “I said, ‘You’re incorrigible.’”
Few have embraced the turn of events as readily as Hatch, who has become a de facto spokesman for the Judiciary Committee. He’s barreled through media appearances in the last three weeks to sharpen McConnell’s red line: no hearings for a Supreme Court nominee under President Obama. To Hatch, the fight is personal: He doesn’t want his close friend Scalia replaced in the politically fraught atmosphere of a presidential election, and he is unmoved by Democrats’ posturing, having witnessed their “annihilation” of Robert Bork in 1987.
But during a 45-minute interview in his office, he is also clear-eyed about the bind in which Republicans find themselves: unable to cave to Obama, but increasingly resigned to the prospect of a Clinton presidency and the similarly unpalatable nominee who comes with it. For Senate Republicans, whose majority hangs in the balance, resisting Democrats’ pressure to cave is perhaps the only tangible victory in reach.
That’s at least partly how Obama put it to Hatch in a private discussion in the Oval Office two weeks ago. Following a signing ceremony for a trade bill Hatch authored, the president pulled the senator aside once the rest of the members had filed out. “His rationale was, ‘Look, I’m going to appoint someone very moderate,’” Hatch recalls. “And then he said, ‘You know you’re going to lose the presidential election, especially with Trump as your candidate. And Hillary’s not going to appoint a moderate like I’m going to.’”
“We have a good relationship,” Hatch says. “He’s a charming man, there’s no question about that. That doesn’t mean I agree with him.”
For most conservatives, Hatch reasons, there is no such thing as a truly moderate judge, especially given the polarizing issues at stake. “We all know that [any liberal president] will have to have someone on the Court who will uphold Roe v. Wade,” Hatch says, citing what he believes to be a foremost concern for the next justice.
For most conservatives, Hatch reasons, there is no such thing as a truly moderate judge, especially given the polarizing issues at stake.
Conservatives rallied around McConnell’s “no hearings, no votes” pledge early on. But there’s a question of whether Obama’s nomination of Merrick Garland — the chief judge of the D.C. Circuit Court of Appeals, regarded by many as politically moderate — has chipped away at that resolve. During our interview, which came one day before Obama submitted his pick, Hatch emphasized the likelihood that Clinton, if elected, would place a “left-wing, pro-abortion, anti-Second Amendment” judge on the Court — a chance he said he was willing to take, so long as it meant moving the nomination process out of the “mess” of 2016. But following Garland’s nomination, Hatch, along with Senator Lindsey Graham, expressed some equivocation on holding a hearing during Obama’s lame-duck session.
Democrats pounced, arguing the shift undercut any claim to principle from Republicans. But for Hatch, the stance is perhaps less hollow: Unlike many Republicans, his primary reason for blocking Obama’s nominee has always been a desire to keep the process out of the election-season chaos, not necessarily to reserve power for the next president. Nevertheless, McConnell quickly sought to close that loophole, affirming to reporters that Garland would not receive a hearing during the lame-duck session.
Democrats “corrupted” the Supreme Court nomination process, Hatch says, when Bork first set foot on the Senate floor. “He was one of the greatest legal minds of this century. And Democrats didn’t want him on the Court because they knew if they got Bob Bork on the panel with Scalia and [William] Rehnquist, it would be a triumvirate nobody could ever conquer.”
Democrats ‘corrupted’ the Supreme Court nomination process, Hatch says, when Bork first set foot on the Senate floor.
Democrats then launched a campaign against Bork that remains a pivotal moment in American judicial history, a point toward which many conservatives look somberly as the death knell in their quest to overturn Roe v. Wade. Senator Ted Kennedy took the floor and blasted “Robert Bork’s America” as one in which “blacks would sit at segregated lunch counters.” Joe Biden, then chairman of the Senate Judiciary Committee, through his Biden Report launched the scorched-earth campaign against Bork that brought to life the phrase “‘borking’ a nomination.”
“Frankly, I knew all of them,” Hatch says. “What they did to Bork was really vile.”
He says he watched a variation of that episode play out a few years later when Thomas took the floor. “They were really going to take Thomas apart,” Hatch says. “What they didn’t realize is he’s a very honest man and a straight shooter and a courageous human being. What got me was that they were trying to destroy him with falsehood.” He’s referring to Anita Hill’s allegations that Thomas had sexually harassed her.
“I had at least two of the leaders on that committee admit to me that they didn’t believe Anita Hill,” Hatch says, “and then they turned and voted against Clarence.”He says it skewered for him any remaining hope that Democrats could view the nomination process with dignity, memories that remain etched in his conscience and bolster his resolve as the cycle begins once more, even if this time it amounts to a net loss for Republicans.
Indeed, Hatch reiterates often his reverence for the process, the sanctity of the Supreme Court. But what he also understands is the game.
As Democrats ramped up their attacks on Bork that year, Hatch recalls trying to eradicate any possible vulnerability. “I said, ‘Bob, do me a favor, shave off that goatee. They’re going to make a caricature of you. You need to get rid of that,’” Hatch shakes his head. “He looked like Don Quixote himself.”
Bork, suffice it to say, did not heed his advice.
— Elaina Plott is a William F. Buckley Fellow in Political Journalism at the National Review Institute.