‘Code’ and the Court

‘CODE’ AND THE COURT…. Sen. Orrin Hatch (R-Utah) appeared on ABC News’ “This Week” yesterday to discuss the looming Supreme Court vacancy. George Stephanopoulos showed a video of President Obama describing his ideal justice as a person of intelligence, excellence, integrity, and empathy. “I will seek someone who understands that justice isn’t about some abstract legal theory or a footnote in a casebook,” the president said. “It is also about how our laws affect the daily realities of people’s lives.”

Stephanopoulos asked Hatch what he thought of Obama’s comments. The Utah Republican wasn’t happy.

“Well, 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.

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

There are a few key angles to this. First, Hatch is already laying the groundwork for Republican obstructionism, suggesting the president’s own search criteria for a justice will necessarily make the nominee some kind of “activist.”

Second, if we really want to talk about “activist” judges, Hatch may want to take a closer look at the current Roberts court.

And third, Obama hasn’t used “code” in describing the qualities he’s looking for in a justice. This is using code.

At a press conference two days after his re-election, President Bush was asked about what sort of Supreme Court justice he might nominate if and when the ailing Chief Justice William H. Rehnquist retires. Mr. Bush repeated the pledge he made in the presidential debates: “I would pick people who would be strict constructionists.”

Nevertheless, Hatch is supposed to be one of the more amenable and cooperative Republicans left on the Senate Judiciary Committee. His comments yesterday were hardly reassuring.