Op-ED: Pick a Nominee Who Unites Americans

By:  Senator Orrin Hatch

When President Barack Obama chooses his second Supreme Court nominee, the Senate must determine the kind of justice that nominee would be. The debate about judicial nominees, after all, is really a debate about judicial power and the role federal judges are supposed to play in our system of government.

One side in that debate wants judges who will rule the way they want on the issues they care about. The political ends justify the judicial means and the only thing that matters is which side wins. Judges may mangle, manipulate and manhandle the law so long as they deliver politically correct results. These advocates of a politicized judiciary label as "activist" any Supreme Court decision that does not favor their political interests.

Not surprisingly, these advocates try mightily to find out how a judicial nominee will rule on those important issues. During Chief Justice John Roberts' confirmation hearing in 2005, for example, one Democratic senator literally asked which side Roberts would be on in certain kinds of cases. That is like hiring an umpire based on which teams he will favor in games that have yet to be played. Other questions probe nominees' personal views on issues, ideological or political affiliations, or otherwise try to find out how they rule on certain issues and in certain cases.

I am on the other side in this debate. Judges are not supposed to take sides simply to deliver the political goods. That is why the oath of judicial office requires that judges "administer justice without respect to persons, and do equal right to the poor and to the rich."

Judges do not make the law, they cannot change the law and their job is to impartially apply the law. As Chief Justice Roberts told that senator, he would take the side that the law requires. The confirmation process might better be guided by the commonsense parental advice that it doesn't matter whether you win or lose, but how you play the game.

I intend to examine the nominee's entire record for clues about whether, as a judge, he or she will take the law as it is and apply it impartially. None other than Thomas Jefferson provided the best way to spot real judicial activists. They are judges who treat the law as a "mere thing of wax ... which they may twist and shape into any form they please." Judges must impartially apply the law and leave the politics to the people and their elected representatives.

During the presidential campaign, and again last year when Justice David Souter retired, President Obama said he would choose judges who had empathy for certain groups. Judges are human beings and, like the rest of us, have their own values and views. But judges must, consciously and deliberately, do their best to set those aside and decide cases only on the law. While President Obama has not this year mentioned personal empathy as a nominating criterion, he now says he wants a justice with certain views on certain issues.

President Obama can nominate to the Supreme Court someone who brings Americans together, someone who will follow the law rather than try to control it. A national poll of likely voters just a few weeks ago found that, by 2-to-1, Americans believe that the Supreme Court should make decisions "based on what's written in the Constitution" rather than on judges' personal feelings of fairness. More Americans, however, expect President Obama's Supreme Court justice to do the opposite.

Filling this vacancy is a chance for President Obama to prove them wrong.

Sen. Orrin Hatch, R-Utah, is a senior Republican member on the Senate Judiciary Committee, which oversees the confirmation hearings of federal judges, including nominations to the Supreme Court.