As the longest-serving current member of the Senate Judiciary Committee, I have participated in 13 Supreme Court confirmations. The confirmation of Judge Neil Gorsuch, set to begin with hearings in just a few days’ time, will be my 14th. If one thing has stayed the same in all that time, it is that the conflict over judicial appointments — and especially Supreme Court appointments — is fundamentally a conflict over the proper role of a judge.
The two sides of this conflict are represented by two kinds of judges. One is impartial; the other is political. The impartial judge embodies the role envisioned by the Founders in our Constitution, fulfilling his duty to “say what the law is,” rather than reinventing the law as he wishes it would be. By contrast, the political judge views the role of the judiciary as no different than that of the legislature, using judicial review as a metaphorical “second bite at the apple” to achieve his preferred political objectives. The stakes in this conflict are enormous: It determines whether the country is governed by the sovereign people or by unelected, unaccountable judges.
Something is seriously wrong when the confirmation process for a Supreme Court nominee sounds just like an election campaign. The notion that a judge would decide cases on the basis of his loyalty to particular political positions is repugnant to our system of government. Indeed, the very oath required of judges by federal law demands that they “administer justice without respect to persons, and do equal right to the poor and to the rich, and . . . impartially discharge” their duties.
Anyone with a basic understanding of civics could tell you that the prospect of a judge’s making up his mind on a case before hearing all the evidence and arguments is inimical to the very idea of the judiciary as it was conceived in the Constitution. Codes of judicial conduct across the country echo this sentiment. The ABA Model Code says that judges should not make pledges, promises, or commitments in connection with issues that are likely to come before them. And the federal Code of Conduct for United States Judges prohibits judges from giving “public comment on the merits of a matter pending or impending in any court.”
By asking nominees to pre-judge cases and pre-commit to particular outcomes, liberals are not just violating the niceties of protocol; they are attacking the independence and impartiality of the judiciary, all the while claiming they want “mainstream” judges. They can’t have it both ways. There is nothing “mainstream” about the radical notion of unaccountable judges imposing a political agenda on the country. To do so is to disregard the rule of law.
America needs impartial judges. I believe the record demonstrates that Judge Gorsuch will be such a judge on the Supreme Court. Attempts to use his confirmation process to demand policy commitments from him — and any subsequent attacks on him for refusing to make such commitments — should be seen for exactly what they are: a radical effort to reshape the judiciary into a political institution.
— Senator Orrin Hatch (R., Utah) is the senior member and former chairman of the Senate Committee on the Judiciary.