Keep Hatch
Utah should give Senator Orrin Hatch another term.

Sen. Orrin Hatch at a hearing in Washington, D.C., in 2009


John Yoo

All eyes are fixed on the train wreck that is the Republican presidential-nomination contest. Unfortunately, some of the zaniness that has appeared in the debates is indicative of the still greater folly occurring at the state level.

Nowhere is this on more flagrant display than in Utah, where conservative activists want to oust Orrin Hatch from the U.S. Senate for being — get this — too liberal. As a former general counsel to Senator Hatch in the mid-1990s, the idea of him losing because of unfaithfulness to the conservative cause makes me think that I have awoken in Jerry Seinfeld’s Bizarro World. Up is down, left is right, and George Constanza’s confidence charms beautiful women and wins him a dream job with the Yankees. Only in that world is Hatch a liberal.

While the presidential contest naturally consumes most of the political oxygen at the national level, conservatives should devote at least equal effort to the U.S. Senate. Because of the protest vote against the Iraq War in the 2006 midterms, liberals won an unusually large bloc of Senate seats. Democrats have 23 of 33 seats up for reelection this year, many of them in states where people usually enjoy clinging to guns and religion, in President’s Obama’s memorable 2008 phrase. A switch of only four Senate seats would give Republicans a majority sufficient to frustrate any legislative agenda. Even if Obama were to win reelection, Republicans could transform his second term into a replay of the Clinton years, in which a stalemated political system resulted in balanced budgets, restrained domestic policy, and a booming economy.

Conservatives intent on reversing the massive, unconstitutional explosion of the public sector under President Obama should welcome Hatch’s return to the Senate. Hatch has spent almost four decades fighting to return the country to its values of individual liberty and limited government. In 2010, his voting record hit a perfect 100 on the American Conservative Union scale. Only Senators Jim DeMint and John Thune could tie him. He serves as co-chairman of the Federalist Society, one of the most successful conservative organizations in Washington, with former judge and Supreme Court nominee Robert Bork. Sean Hannity and Mark Levin have endorsed Hatch.

Conservative activists in Utah, however, must think Bork, Hannity, and Levin are crypto-liberals. They are threatening to use the state’s unusual caucus system and outside political-action committees to end Hatch’s four decades of conservative handiwork. Six candidates have filed to challenge Hatch, including two state legislators, though popular conservative congressman Jason Chaffetz has decided not to run. In just about any other state, the thought of knocking of someone with Hatch’s conservative track record and political savvy would be fanciful. But not in Utah, where a quirky nomination process eliminates candidates in rounds of voting by locally elected delegates until only two candidates remain. Unless one of them wins 60 percent of the vote (with which he becomes the party’s nominee), the two candidates left standing advance to a primary. In 2010, three-term senator Bob Bennett lost after two rounds of voting, because the caucus tends to attract energized delegates who are not necessarily representative of the state party generally.

The same activists who ousted Bennett now have Hatch in their cross-hairs. They claim that he has overstayed his welcome in the Senate and has strayed from conservative values. The first critique is irrelevant and even naïve. Because of the Senate’s seniority rules, conservative senators of long standing sit atop powerful committees and as a result, can actually have an outsized influence. If Republicans gain a majority, Hatch will become chairman of the Senate Finance Committee, considered the most powerful body in the upper house because of its control over taxes. Conservatives can be sure that Hatch, who has led efforts to ratify a balanced-budget amendment to the Constitution, will promote free-market values from that influential perch.

The second critique of Hatch ignores his most important achievement, without which there would be no tea-party agenda and government today would be far larger than it already is: a more conservative Supreme Court. Only the federal courts have succeeded in slowing Washington’s unrelenting expansion of power. Admittedly, its success has been modest, but the Supreme Court has been the only branch to impose any limits on the Commerce Clause, which is the main font of Congress’s power to regulate society and the economy. Only the Court has defended the sovereignty of the states to regulate matters not specifically reserved to Congress by the Constitution. The only check on the independent agencies and their quest to over-regulate the economy has come from the Court’s defense of the separation of powers. Recognizing this, conservatives have placed their hopes of reversing Obamacare in a lawsuit currently pending before the Supreme Court to overrule the law’s individual mandate.

Without Hatch, none of this could have happened. Given the ascendancy of the U.S. Supreme Court in our political system over the past few decades, it is no exaggeration to argue that few have actually achieved more for American conservatism than has Hatch. His gentlemanly presence and soft-spoken ways sometimes cause observers to underestimate the fire with which Hatch has waged war on the Senate Judiciary Committee, where he has led Republicans for decades. When President Reagan elevated William Rehnquist to the chief justiceship in 1985, liberal groups and senators tried to stop his nomination with manufactured claims that he had harassed minority voters. On his own, Hatch attacked the critics who spread these irresponsible rumors and saved the Rehnquist appointment. Without Rehnquist, Antonin Scalia might not have joined the High Court. If Democrats had succeeded in delaying the chief justice’s appointment by one year, Scalia might have shared the fate of Robert Bork, who could not win confirmation in 1987 before a Senate with a new Democratic majority. Without Hatch’s stand, the Rehnquist Court could never have begun the conservative counter-revolution in constitutional law, and Scalia would not have penned the opinions that have set the conservative intellectual agenda. No Hatch, no Rehnquist or Scalia.