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.
As Democrats and their allies have only worked harder to turn the judicial-appointments process into an ugly slugfest of ad hominem attacks and unproven innuendos, Hatch has stepped up as the lead defense counsel for the brightest conservative judges. He shepherded John Roberts through efforts to use his earlier Justice Department work against him, and he guided Samuel Alito past bizarre claims that his college extra-curricular interests somehow showed him to be a racist. These two conservative justices will shape the Court’s direction for years to come. No Hatch, no Roberts or Alito.
But in my mind, Hatch’s finest moment came during the nomination of Clarence Thomas to the Supreme Court in 1991. Senate Democrats and their interest-group allies sought to derail the appointment with unsubstantiated charges that Thomas had talked dirty with Anita Hill when both worked at the Equal Employment Opportunity Commission. Hill’s accusations unloosed a maelstrom of gender, race, and power issues. It was difficult, to say the least, for a white-male politician to step into the controversy and demand that Thomas be treated fairly, Hill’s testimony not go unchallenged, and the committee and the Senate vote on the nomination without regard to unproven rumor and innuendo. Hatch bravely charged into the fray and saved the Thomas nomination, without worry about the personal consequences. There are few in the Senate, or in any legislature, that will go to the mat to save a nominee under such a character assault.
Justice Thomas won confirmation by only four votes. He later declared that Hatch played a “massive role” in getting him confirmed. And it is in winning Justice Thomas’s confirmation that, ironically, Hatch helped give birth to the Tea Party. Thomas set the table for today’s conservatives by making originalism fashionable again. Many appointees to the Court enjoy its role as arbiter of society’s most divisive questions — race, abortion, religion, gay rights, and national security — and show little desire to control their own power. Thomas, however, thinks that the meaning of the Constitution held at the time of its adoption binds the United States as a political community and that decades of precedent must be scraped off the original Constitution like barnacles on a ship’s hull. Hatch and Thomas were originalists before it was cool.
Over the last 20 years, Thomas’s opinions have become a beacon to the grassroots movement to restrain government spending and reduce the welfare state. In United States v. Lopez (1995), for example, Thomas called on the Court to reverse decades of case law that had transformed Congress’s authority “to regulate Commerce . . . among the several States” into a limitless “police power.” He would restrict federal laws to commercial activity that crosses state borders and end national control over manufacturing and agriculture. Cases that allow Congress to regulate anything that has “a substantial effect” on interstate commerce “is but an innovation of the 20th century,” wrote Thomas in a concurring opinion. His view, fully shared by Hatch, would drive a stake into the heart of the New Deal state, which would have to return policy over welfare, health care, education, labor, and crime to the states where they belong. Tea partiers who oppose wasteful federal spending and want a more Spartan national government are following in Thomas’s intellectual footsteps. No Hatch, no Thomas.
Hatch’s fight to move the Supreme Court in a conservative direction is only the tip of the judicial iceberg. He has tirelessly pressed to appoint conservative judges to the lower federal courts, where 99 percent of all federal cases are decided. He has fought in the trenches against nominees from Democratic presidents whose liberalism places them outside the mainstream, such as Sonia Sotomayor. If anyone has mentored the farm system for the next generation of conservative judicial superstars, it has been Hatch.
It is difficult, if not impossible, for any single senator to consistently move legislation toward the conservative vision of a limited federal government. He must convince his colleagues to willingly limit their own ability to hand out the goodies that can win reelection. And Hatch, like most of his colleagues, voted for the emergency bailout, TARP, and stimulus bills at the urging of Bush and Obama administration officials, who were predicting the imminent collapse of the financial system. But in the sphere of judicial politics, a senator can advance the conservative agenda by winning the confirmation of men and women who believe in restoring the vision of the Constitution’s framers. No senator has done more to promote conservative values in constitutional law than Hatch, and a failure to return him would only show that conservative activists are more interested in enforcing a false ideological purity than winning and governing.
— John Yoo is a law professor at the University of California, Berkeley, and a visiting scholar at the American Enterprise Institute. He served in the Bush Justice Department from 2001 to 2003 and is the co-editor of Confronting Terror.