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SENATOR HATCH LAMENTS DEMOCRATS' USE OF JUDICIAL LITMUS TESTS
The following remarks are taken from a statement made by Senator Orrin Hatch (R-UT) on the U.S. Senate floor March 15, 2002 following the rejection by the Judiciary Committee of President Bush's nominee, Charles Pickering, to serve on the 5th Circuit, and the Democrat Majority Leader's decision not to allow the full Senate to vote on the nomination. In this statement, Senator Hatch decries the Democrats' apparent intention to impose litmus tests on judicial nominees. As he puts it in this statement, " I can promise this: a decision to impose a litmus test will offend everyone in this country who understands and appreciates the rule of law, the independent judiciary, and the great tradition of debate and acceptance of diversity that have made our country the strong democracy it is today."
I rise today to express my deepest felt disappointment in the decision of the Judiciary Committee yesterday against the nomination of Judge Charles Pickering, a jurist of the highest character and proven dedication to public service. . . .
Yesterday Senators on the Judiciary Committee received a letter from three dozen members of the House of Representatives, including the former chairman of the House Judiciary Committee, Mr. Hyde. House Members asked that the Judiciary Committee repudiate extreme liberal, left-of-mainstream special interest groups that have raised Judge Pickering's religious views as an issue, going so far as to attack Judge Pickering for a speech he gave on the Bible when he was president of the Mississippi Southern Baptist Convention....
I think that is wrong. . . . It certainly was wrong to criticize Judge Pickering's religion and his religious perspective. He is a religious, righteous man, the type of person you would want to have on the bench. And thank goodness he still will be on the bench in the district court, but he won't be able to lend his expertise and talents to the circuit court of appeals.
I join with the concern expressed by my colleagues here and in the House, including Democrats. The fact that an impression has been created that the Senate Judiciary Committee would impose any test, whether a religious test or an abortion litmus test, concerns me greatly.
Republicans refused to establish an abortion litmus test in either direction when we controlled this committee. We confirmed 377 of President Clinton's judicial nominees without imposing such a test. Maybe this has something to do with the makeup of the Judiciary Committee: all the members on one side of the aisle share a single view, but on the Republican side, both views are welcomed.
I might also add, I believe that underlying these attacks on conservative judicial nominees is the issue of abortion. If we had chosen to use that as a litmus test issue, President Clinton would have had very few judges confirmed. If that is going to be the rule, then that is a very bad thing and bad precedent to start. I was told by some of the outside groups that they do not believe anybody should serve on any court in this land who is not pro-abortion.
That is an extreme view. Hopefully that view will never have that much influence on this body, but, unfortunately, I think it does have an influence. I will not ever agree that the Judiciary Committee or the Senate should exercise its advice and consent responsibility in a way that makes an absolutely lock-step demand that nominees think in a particular way on any single issue. Of course, as long as the Democrats are in the majority, I cannot stop them from doing so.
But I can promise this: a decision to impose a litmus test will offend everyone in this country who understands and appreciates the rule of law, the independent judiciary, and the great tradition of debate and acceptance of diversity that have made our country the strong democracy it is today.
Although some Senators on this committee prize diversity as a standard for the confirmation process, it concerns me that some people's definition of diversity includes only those with diverse skin color or ethnicity, and then only if they agree with their liberal views.
Take Miguel Angel Estrada, whom the President nominated 310 days ago. . . Mr. Estrada, an immigrant from Honduras with a distinguished career, would be the first Hispanic on the prestigious Court of Appeals for the District of Columbia Circuit, and yet I read on the front page of the Wall Street Journal today that Democrats are gearing up to do to him what they did to Judge Pickering.
He may be a minority, but he is the wrong kind of a minority, apparently, in the eyes of some of these people. I think that is awful. Clarence Thomas was a minority, but he was the wrong kind of a minority in the eyes of some of these people. That is awful.
"Diversity" appears not to include intellectual diversity - diversity of personal viewpoints or religious conviction . . .
Some of my Democrat colleagues have openly sought to introduce ideology into the judicial confirmation process, something which I repudiate. I am now concerned that the abortion litmus test would have the same effect as a religious test. . . .
When one Senator asked Judge Pickering about Roe v. Wade, Judge Pickering's response was unequivocally that he viewed it as the law of the land and would follow it as a judge, without regard to his private views. Surely, this should be enough. Otherwise, this will mean that no judges with private pro-life views, who derive these views from religious conviction, will ever again be confirmed in a Democrat-led Senate.
To impose an abortion litmus test on private views--call it ideological if you want to--is to exclude from our judiciary a large number of people of religious conviction, who are perfectly prepared to follow the law.
I fear this is the door this Democrat-led Senate could be opening. I can understand why people would believe that a religious test is being imposed.
Certainly, as a former president of the Mississippi Southern Baptist Convention, Judge Pickering's nomination makes concern over a religious test understandable. The recorded attacks of the extreme left special interest groups based on Judge Pickering's religious views are repugnant, and I do hope that my Democrat colleagues will indeed repudiate such tactics. . . .
What is now occurring is far beyond the mere tug-of-war politics that unfortunately surrounds Senate judicial confirmation since Robert Bork. My Democrat colleagues are out to effect a fundamental change in our constitutional system. Rather than seeking to determine the judiciousness of a nominee and whether a nominee will be able to rule on the law or the Constitution without personal bias, my Democrat colleagues are out to guarantee that our judges are in fact biased. And certainly no person who holds certain religious convictions need apply. ...
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