Hatch: Obama Using ‘Code’ for Activist Judge

By Jennifer Parker

May 3, 2009 11:24am

Republican Sen. Orrin Hatch of Utah, the longest serving Republican on the Senate Judiciary Committee, said on "This Week" Sunday that President Barack Obama used "code" for an activist judge this week when describing his ideal nominee to replace retiring Justice David Souter.

"It’s a matter of great concern, if he’s saying that he wants to pick people who will take sides. He’s also said that a judge has to be a person of empathy — what does that mean? Usually that’s a code word for an activist judge," Hatch told me on "This Week."

"But he also said that, that, he’s going to select judges on the basis of their personal politics, their personal feelings, their personal preferences," Hatch said, "Now, you know those are all code words for an activist judge who’s going to be partisan on the bench." 

Obama this week said he was looking for a person of intelligence, excellence, integrity, and empathy.

"I will seek someone who understands that justice isn’t about some abstract legal theory, or footnote in a case book. It is also about how our laws affect the daily realities of people’s lives, whether they can make a living, care for their families, whether they feel safe in their homes, and welcome in their own nation," Obama said Friday, in a clip that aired on ‘This Week." 

But Hatch argued Obama shouldn’t have a "litmus test" when selecting a judge.

"We all know he’s going to pick a more liberal justice.  Their side will make sure that it’s a pro-abortion justice.  I don’t think anybody has any illusions about that.  The question is, are they qualified?" Hatch said.

Democratic Sen. Patrick Leahy of Vermont said he has spoken to the president about his potential pick and rejected Hatch’s argument that Obama is using "code" words.

"I’ve known President Obama long enough.  He doesn’t need to use code words.  He speaks very plainly and very directly.  I think that’s why he won such a resounding victory in November," Leahy said on "This Week." 

"What I would argue is you walk into the Supreme Court, over the doorway there is a great big piece of Vermont marble, and engraved on it, it says "equal justice under law."  That’s what you want to have. We’ve had a very activist court.  We had an activist court that made a decision that allowed employers to covertly discriminate against women so that women wouldn’t get paid equally.  We in the Congress reversed that with a law, in fact, the first law that President Obama signed into law.  I think he wants to have somebody to treat people all the same, whether they’re Republicans, or Democrat, men, women, or whatever they may be," Leahy said.

"I think he has some very — some people that he would like to see — the type of people he’d like to see. Remember, he was a constitutional law professor," Leahy said.

Leahy said he expects Obama’s nominee for the Supreme Court to be on the bench in time for the court’s new term in October.

When I asked whether Obama’s pick should be a woman, Leahy said, " I would like to see certainly more women on the court. Having only one woman on the Supreme Court does not reflect the makeup of the United States.  I think we should have more women.  We should have more minorities. I would like to see more people from outside the judicial monastery, somebody who has had some real-life experience."

One conservative group has begun mobilizing against some rumored Obama picks, arguing appeals court judges Sonia Sotomayor of New York and Diane Wood of Chicago, and the new solicitor general, Elena Kagan are radicals.

"I don’t think they’re radicals," Hatch told me, "but there’s no question that they are on the far left of the spectrum.  And to be honest with you, I don’t expect the president to pick somebody in the center or on the far right.  But, you know, it would be a slam dunk if he picked somebody who was center-left like Souter.  Souter became very liberal, but he also stood for a lot of principles."

With Sen. Arlen Specter of Pennsylvania now a Democratic, I asked who would be leading the Republicans on the Senate Judiciary Committee.

Hatch suggested it could be Republicans Sens. Chuck Grassley of Iowa, John Kyl of Arizona, or Jeff Sessions of Alabama.

"I suspect that Grassley has first choice to become the ranking member on Judiciary," Hatch said.   

"Grassley has first choice.  Then Kyl if Grassley stays on Finance.  And if Kyl stays in leadership, then Jeff Sessions.  So any of those three could wind up being –" Hatch said.

"Are you expecting then Senator Sessions to be the ranking member?" I asked. 

"Well, I don’t know.  I know that he and Senator Grassley are trying to work out something, and we’ll just have to see what happens.  But I suspect any of those three will be just fine," he said. 

–George Stephanopoulos

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