Trump should rely heavily on Hatch to get Gorsuch confirmed

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Salt Lake Tribune - President Donald Trump hit the high point in his young but already controversial administration when he nominated Neil M. Gorsuch to the United States Supreme Court. Trump kept his campaign promise to replace Justice Antonin Scalia with a prominent conservative. Gorsuch also stands out among the list of potential conservatives, however, for criticizing executive power. He may be the kind of check on the president that Americans of all political stripes seem to want.

But Senate Democrats have different plans for this confirmation process. Their political base is demanding all-out "resistance" to the Trump agenda. Senate Minority Leader Chuck Schumer promises to block any "extremist" nominee who is not "bipartisan" and "mainstream." Some senators, such as Elizabeth Warren and Ed Markey of Massachusetts, have already declared their opposition to Gorsuch without even the benefit of a hearing.

Democrats have already waged an unprecedented campaign of obstruction against Trump's nominees to head the federal agencies. In the past, senators deferred to a president's choice for his own cabinet, and votes against confirmation rarely reached the double digits. Now Democrats are regularly opposing cabinet nominees with more than 40 votes.

In this tense political environment, judicial confirmations will become another arena for partisan struggle. Democrats are still angry over Republicans' refusal to confirm President Obama's nominee for the Scalia seat during last year's election season. Gorsuch's confirmation could be the most titanic battle yet.

Gorsuch will need a champion capable of making the case that he is the type of judge the Constitution envisions, devoted to applying the law instead of rewriting it. That man will be Sen. Orrin Hatch. Over his years of service, Hatch has established a reputation as the Senate's leading voice on the proper role of the judiciary in our system of government.

He was one of the earliest defenders of originalism, which calls upon judges to interpret the Constitution based on the understanding held by those who drafted and ratified it, and a critic of the idea of a "living" Constitution that means whatever we want today. Because of his many decades fighting against liberal judicial activism in areas ranging from abortion to affirmative action, most Republicans today demand follow that judges hold fidelity to the law, rather than their political preferences.

But Hatch goes beyond giving erudite speeches. Today, a senator's primary influence on the Constitution rests in his or her role in appointing federal judges. Here, Hatch has an unparalleled record — one I witnessed as general counsel of the Senate Judiciary Committee during Hatch's chairmanship. During the first major confirmation fight in modern times, Hatch raised a powerful voice in defense of Judge Robert Bork, one of the most qualified nominees in the history of the Supreme Court, against gross distortion of his record.

When Clarence Thomas was confronted with allegations of sexual harassment that initially seemed to doom his nomination, Hatch organized and led the effort to defend Thomas and revealed a liberal conspiracy to orchestrate the lurid charges.

Similarly, Hatch shut down efforts at character assassination against John Roberts and Samuel Alito during their confirmation hearings. When Democrats launched unprecedented filibusters against President George W. Bush's lower court nominees, Hatch's tough tactics forced Democrats to cut a deal that allowed many of the contested nominees to receive a vote.

Hatch has been one of the most influential individuals in modern history in shaping the direction of the courts. President Trump and his team will have to rely heavily on Hatch to confirm Judge Gorsuch. It will be a test like no other of the unique combination of broad constitutional understanding and tough political tactics that Hatch has long brought to the Senate.

John Yoo is Heller Professor of Law at the University of California, Berkeley, and a visiting scholar at the American Enterprise Institute. He is the co-editor most recently of "Liberty's Nemesis: The Overexpansion of the State."

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