Sen. Orrin Hatch on ABC's This Week, discussing President Obama's options for replacing David Souter on the Supreme Court, thinks that if a judge is a
May 3, 2009

Sen. Orrin Hatch on ABC's This Week, discussing President Obama's options for replacing David Souter on the Supreme Court, thinks that if a judge is a person of empathy, that's a code word for an "activist judge". Which is to say, he won't overturn Roe v. Wade. (That's right: the "activists" are the ones siding with the status quo.) Everything has to be about abortion with these people.

Sen. Pat Leahy reminds Hatch that the President doesn't need to use "code words" -- and besides, we've already had an activist court when it comes to discrimination against women in the work place.

Question for Orrin Hatch: Does this mean that Republicans have no empathy?

STEPHANOPOULOS: Gentlemen, welcome to you both. And Senator Hatch, let me begin with you. What did you make of the criteria the president laid out?

HATCH: 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.

STEPHANOPOULOS: Now, he did also say he wants someone who respects the rule of law and the limits of the judicial role...

HATCH: He did say that.

STEPHANOPOULOS: So it sounds like you're saying that you think there's a tension between following the law and following your feelings when you're a judge.

HATCH: Well, I don't think there should be a litmus test or any set of litmus tests when you pick people for the high court, and I suspect that the president understands that. He's a very bright guy, charismatic, intelligent, likable, and I'm hoping that he'll pick somebody of great dimension.

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? Are they going to be people who will be fair to the rich, the poor, the weak, the strong, the sick, the disabled, and yet give justice to those who may not be...


STEPHANOPOULOS: Chairman Leahy, let me bring you in on this, because what Senator Hatch is saying there I've heard from a lot of other conservatives, this fear that the president's focus on empathy is a code for bringing a judicial activist to the court.

LEAHY: 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.

I talked with President Obama shortly before he did that press conference, and I think I have a pretty good sense out of the meeting with him when I returned to Washington from Vermont -- I have a pretty good sense of what he has in mind for a justice. What I would argue...


LEAHY: What I would argue...

HATCH: I would like to know that, Pat.

LEAHY: 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.

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