Better in their words…

======
By Orrin G. Hatch
WSJ 3/26/2017

During last week’s confirmation hearing for Judge Neil Gorsuch, some of my Senate colleagues heard from teachers who were using the occasion as an educational tool. Indeed, Supreme Court confirmation hearings can be a civics lesson for the nation. They offer unparalleled insight into the Constitution and the proper role of judges in our system of government. I have participated in 14 of these hearings during my four decades on the Senate Judiciary Committee. The nominees are typically highly talented lawyers and judges. The Senate’s role is to probe their qualifications and judicial philosophies. At its best, the process is removed from the pettiness of partisan politics.

I take this duty seriously. Although I am a committed conservative, I have voted for the Supreme Court nominees of both parties— even those I might not have chosen myself—as long as I have been assured of their fitness for office. I helped shepherd through President Clinton’s nominees, Ruth Bader Ginsburg and Stephen Breyer. Both had shown themselves to be honorable, capable jurists with reputations for careful, nonideological work on federal appeals courts.

What sort of civics lesson were the American people treated to last week? Judge Gorsuch’s performance was outstanding. Enduring more than 20 hours of questioning over two days, he displayed an impressive command of the law and an intellect befitting someone with his stellar credentials. He showed that he understands the proper role of a judge in our system: to apply, not make, the law. Throughout, his demeanor was serious, thoughtful and humble. These qualities have defined his judicial service for the past decade and will serve him well on the Supreme Court.

In stark contrast was the astonishing treatment Judge Gorsuch received from many of my Democratic colleagues. Whatever their motivation— be it the outcome of President Obama’s lame-duck nomination during last year’s election, an unwillingness to accept the November results, or the desire for judges to push a liberal political agenda—they have apparently decided to wage a desperate, scorched-earth campaign to derail this nomination, no matter the damage they inflict along the way. We are now watching the confirmation process through the funhouse mirror. Consider the Democrats’ demand that Judge Gorsuch answer politically charged hypotheticals about future cases. For decades, Supreme Court nominees of both parties have rightly refused to comply with such demands. To offer an advisory opinion is inconsistent with the Constitution, which gives judges the authority to make a decision only within the legal and factual context of an actual case. Judges should be neutral arbiters, and asking them to prejudice themselves raises serious dueprocess concerns for future litigants, who deserve the opportunity to make their arguments in full.

When Judge Gorsuch politely explained his inability to answer such questions—often while giving an extensive rationale for demurring— he was lambasted by some of my Democratic colleagues. Yet these senators have gladly embraced the very same answer from nominees in the past. It is hard not to interpret their attacks as hypocrisy.

Consider also the way some of my colleagues misrepresented Judge Gorsuch’s record. Their attempts were so formulaic that they read like a recipe: First, cherry-pick one of the judge’s opinions in which a sympathetic victim lost. Next, gloss over the legal issues that informed his decision in the case. Then fail to mention that his opinions were often joined by colleagues appointed by Presidents Clinton and Obama. After that, ignore the many times that Judge Gorsuch ruled in favor of similar litigants. End with a wild assertion about how Judge Gorsuch must be biased against “the little guy.”

We should call these phony attacks what they are: intentional attempts to mischaracterize Judge Gorsuch’s record. Any fair analysis can lead only to the conclusion that he reaches the result commanded by the best reading of the law, free from any political agenda. As Judge Gorsuch rightfully put it, quoting Justice Antonin Scalia: “If you’re going to be a good and faithful judge, you have to resign yourself to the fact that you’re not always going to like the conclusions you reach. If you like them all the time, you’re probably doing something wrong.”

In Judge Gorsuch, the country has a Supreme Court nominee as fine as I could ever imagine. But instead of the best traditions of the advice-and-consent process, which many of us have tried to live up to, what does he get? Hypocritical attacks on the very judicial independence Democrats claim to prize, misleading characterizations of his record, and now a promise to filibuster his nomination. In essence, Judge Gorsuch gets the kind of treatment that leads him to regret putting his family through what ought to be a dignified process. This madness needs to stop. End the dishonest attacks and scorched-earth tactics. Instead, we should have a debate worthy of “the world’s greatest deliberative body,” and confirm this outstanding nominee.

Mr. Hatch, a Utah Republican, is president pro tempore of the U.S. Senate and a member of the Judiciary Committee.