Senator Hatch recently wrote an essay for Harvard Journal of Law & Public Policy about the role of the Constitution in judicial nominations and confirmations.
Below are a few excerpts:
Nonetheless, the timing of this Essay is auspicious in several respects. First, I write in the wake of two very relevant Federalist Society student symposia, last year's about the people and the courts and this year's about the separation of powers. Second, President Obama has been particularly clear from the time he was a candidate about his intention to appoint judges who will exercise a strikingly political version of judicial power. Third, he has already started acting on that intention by making his first judicial nominations. New Presidents typically make their first judicial nominations in July or even August, yet the Senate Judiciary Committee has already held a hearing on the President's first nominee to the U.S. Court of Appeals, and the President sent two more nominees to the Senate just a few days ago.
The timing of publication of Senator Hatch's essay was bolstered by the news last week that Supreme Court Justice David Souter planned to retire this summer.
Continuing, Senator Hatch explains the role of the Constitution in judicial nominations:
Consider a judicial nomination as a hiring process based on a job description. The job description of a judge is to interpret and apply law to decide cases. This job description does not mean whatever a President, political party, or Senate majority wants it to mean. Our written Constitution and its separation of powers set the judicial job description. Interpreting written law must be different than making written law. Because law written in statutes or the Constitution is not simply words, but really the meaning of the words, only those with authority to make law may determine what the words of our laws say and what those words mean. Judges do not have authority to make law, so they do not have authority to choose what the words of our laws say or what they mean. In other words, judges apply the law to decide cases, but they may not make the law they apply. Judges and the law they use to decide cases are two different things. Judging, therefore, is about a process that legitimates results, a process by which the law made by the people and those they elect determines winners and losers.
The Constitution and its separation of powers compel this judicial job description. This kind of judge is consistent with limited government and the ordered liberty it makes possible. Justice Markman's article describes what he calls a "traditional jurisprudence -- one that views the responsibility of the courts to say what the law 'is' rather than what it 'ought' to be." Such a philosophy of judicial restraint -- an understanding of the limited power and role of judges -- is a qualification for judicial service. This is the kind of judge a President should nominate.
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