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MR. MATTHEWS: We begin with two members of the U.S. Senate Judiciary Committee, Orrin Hatch of Utah, a Republican, and Sheldon Whitehouse of Rhode Island, a Democrat. Gentlemen.
Senator Hatch, thank you very much for joining us, sir.
Why can't the Supreme Court include people we've heard of before? Why do you have to go to the corners, the dark corners of the legal community, to pick strangers? For example, why are we not hearing the names of politicians like William Howard Taft, Earl Warren, presidential candidates, former vice presidential candidates, governors, senators? Why are you not looking at a longer list of public figures?
SEN. HATCH: Oh, I think, in a very real sense, a lot of Democrats were insisting during the Bush years that he pick appellate court judges or judges with experience in judging. And we heard that drumbeat over and over and over.
Well, some of the greatest justices that ever sat on the court never walked into a courtroom, never tried a case, never took an appeal. And yet they became great judges because of their intellect, their ability in the law and so forth.
So I don't think the president necessarily has to pick somebody who served on the bench. I think that's a very good, positive thing to do. On the other hand, I think that you can find some very fine people who haven't served in the judiciary themselves.
MR. MATTHEWS: What do you do, Senator Hatch -- I want to stay with you for a minute -- with the word "empathy"? Apparently that's become something of a lightning rod. The president said something about picking somebody with empathy. That could mean someone who knows what the world's all about. It could mean something else. What do you take it to mean?
SEN. HATCH: Well, the president called me today, and he made it very clear that, you know, he wants people who are not out of the mainstream. He wants people who are not radical, who are not extreme. And he said he's going to make a pragmatic choice, and he feels he'll pick somebody who's pragmatic.
But if you start talking about empathy, do you allow your empathy to change the law so that it meets with your empathetic feelings, or does that mean that you at least have some sort of a feeling about what really moves the world and makes the world go, within the rule of law, the framework of the rule of law? If it's that, fine.
But the president also has said that he's going to pick somebody who might use their own political preferences, feelings or other approaches. And, you know, these are kind of words that bother those of us who think that the judiciary should be limited to what it should do. There are limitations on what a judge can do. They're appointed for life. They are not elected to go and make laws. And when they start making laws rather than interpreting laws, that's when I think they have a rough time with me.
MR. MATTHEWS: Well, let's take a look at what the president said and then we'll go to Senator Whitehouse. Here's President Obama on Friday using that word, "empathy."
PRESIDENT BARACK OBAMA: (From videotape.) I view that quality of empathy, of understanding and identifying with people's hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes. I will seek somebody who is dedicated to the rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process and the appropriate limits of the judicial role.
MR. MATTHEWS: And here's Senator Leahy, the chairman of the committee, a Democrat from Vermont, saying something like that. Let's listen to that.
SEN. PATRICK LEAHY (D-VT): (From videotape.) I want the president to pick somebody for all the American people. In the past few years, the court -- many members of the court have seemed to be more and more isolated from real Americans, real people. I'd like to see somebody -- I'd like to see an appointment of somebody who has real-life experiences, not just within a judicial monastery but somebody who can reflect the feelings of real Americans.
MR. MATTHEWS: Well, let's go to Senator Whitehouse. You know, I look back on those big court decisions of our lifetime, like the Brown case back in '54 -- you talk about empathy. Apparently, as part of their judicial discovery in trying to figure out how to rule on separate but equal, they looked at what impact separate schools did for young black kids, and what it did was convince them that white dolls are better than black dolls.
And it was that empathetic look at what separate education was doing to these kids and giving them inferiority complexes that partially led them to the ruling in the famous Brown versus Board of Education case. Is it wrong to look at empathy? Should you look at the law or the history of the law only in the Constitution, or should you look at its impact?
SEN. WHITEHOUSE: I think it's important to look at empathy. I think the president is onto something very important. And I have great respect for Senator Hatch. He's a very distinguished former chairman of the Judiciary Committee. But I think it's premature at this point to leap to the conclusion that empathy requires overturning the rule of law. The rule of law is a vital prerequisite for this judge, but within that rule of law, there is abundant room for human characteristics like empathy to help define the way decisions are made and the way decisions are framed.
MR. MATTHEWS: Are you concerned, Senator Hatch, that some justice could come along and, in a big broad decision, lead the court to believe that implicit in our founding documents, including the right to the pursuit of happiness in the Declaration, that you should have same-sex marriage, that that would be part of an empathetic decision, feeling for those same-sex couples and their predicament?
SEN. HATCH: I have no problem with judges having a heart, wanting to do what's right and wanting to live within the legal constraints that do exist. When they start substituting their own personal policy preferences for what the law really is, then that's the misuse of empathy. And it means a person like that shouldn't be sitting on the bench.
Now, one of the statements that President Obama did say is that he said he's going to pick judges who, you know, are going to have political preferences or going to rule on feelings, et cetera, et cetera. Now, that worries you, because if that means that their feelings and their political choices and their political preferences take over from the rule of law, then I think that makes for a very poor judge.
Now, I think Sheldon would probably agree with that. And I'm hopeful that the president will do what he said today to me personally. He said, "Look, don't worry. I'm not going to appoint a radical or an extreme person. I'm going to appoint somebody in the mainstream and I'm going to be very pragmatic about what I do." And if he does that, I feel like he's going to be going a long way towards having a slam dunk, to use a phrase that others have used.
MR. MATTHEWS: Well, you know, I was just thinking, Senators, that a lot of us believe in the founding documents implicitly. We really do love them. And we love the words. We love the way they put together our Declaration and our Constitution and the Federalist Papers and everything. We believe they were inspired in so many ways, in a secular sense or in a religious sense by some standards. And I just wonder, how do you square that with these broad court decisions in our lifetime?
The Brown case, they had to find some inherent problem with separate but equal. In the prayer case, they had to find something about the establishment clause in just reading the King James Bible in class. In Roe they had to find some inherent notion of privacy that wasn't in the document.
Senator Whitehouse, you first.
How do you square the need to preserve and protect our Constitution with this very broad ability that these courts have done in these landmark cases to find constitutional law where it's not written?
SEN. WHITEHOUSE: As you said --
MR. MATTHEWS: How do they do it?
SEN. WHITEHOUSE: As you said, Chris, the great ideas of the Constitution and the great phrases of the Constitution are eternal, and the judges have to follow them. But they play across a new landscape that new centuries and new generations spread before them. And it's important that a judge be attuned to the new features in the new landscape as time moves forward. And that's what some of those great decisions adapted to.
We can't have a Constitution in a freezer that doesn't apply to the new situations of our country. And I think it's very important that we see that and allow that to take place. It's been part of our constitutional history. Frankly, it's been, in many respects, some of the proudest part of our constitutional history.
MR. MATTHEWS: Well, Senator Hatch, let's get down to the bone here. The commerce clause was used in judicial review of the civil rights acts on public accommodations, and the court said it was within the purview of the federal government to regulate interstate commerce and to outlaw discrimination in restaurants and hotels, and that was a decision that the public went along with, although I would say it's a broad interpretation.
What happens if the court comes along and says, "Due process includes the right to a same-sex marriage"?
SEN. HATCH: Well, let me just choose one -- just one case out of the many -- two. Plessy versus Ferguson; that had to be overruled. That was a case of judicial activism.
But let's take Roe versus Wade, the abortion case. Look, that case has probably caused more problems -- even the top liberal authorities on this have said that there was no justification for the court deciding that case that way, in any way, shape or form. And that case has probably caused more lack of partisanship than any other case that I can think of, where, if it had been left to the elected representatives of the people, yeah, there would have been fights all over the country, but at least the people who were elected to make these changes would make them and not unelected judges.
And that's what I'm talking about, when they go way beyond what the Constitution says and conjure out of thin air laws that really should be left up to the elected representatives of the people. That's when I think judges get in trouble. And the president assured me today that he's not going to pick somebody who will do that.
MR. MATTHEWS: But in the past --
SEN. WHITEHOUSE: Chris, if I could add one thing --
MR. MATTHEWS: -- we've had Republican appointees who have found that a woman has a right to have an abortion in many circumstances, Senator Whitehouse. Judges have found that right in the document. Somehow they have found it there.
SEN. WHITEHOUSE: And I would say that other cases that we're very proud of, like Brown versus Board of Education, have also caused problems. But they've been good problems. They've been the problems that America should face. They've moved the ball forward so that separate but equal went into the trash bin of history and we began to have a culture in which, black or white, you had the same shot at an education.
Did it create problems? Sure, it did. It created problems throughout the South. It created problems in Boston. It created all sorts of problems. But you don't flinch from those problems when the clear import of the Constitution and its tendency toward justice are at stake.
SEN. HATCH: I don't know anybody who would disagree with Brown versus Board of Education. That's a case that I think fits well within the Constitution, even though it was a case of first impression. But when you start making cases like Roe versus Wade, that really decide these great sociological and very, very important principles by unelected judges who really take one side or the other, that's a bad mistake.
When it comes to gay marriage, look, I take the position that marriage is a sacred institution that ought to be between a man and a woman, but that doesn't mean we shouldn't -- that we should be discriminatory against gay people at all.
But, you know, I think the court has to decide some of these issues, but they ought to decide them -- it would be far better to decide really tough issues by the elected representatives of the people than by the courts themselves, who are not -- they're not appointed to make laws. They're appointed to interpret laws that are made by those who have to stand for re-election.
MR. MATTHEWS: I think we're right at the heart of the issue, gentlemen. Thank you for taking us there to the cutting-edge question as to the role of the court and how broad should be their interpretations of the written Constitution.
Thank you, Senator Orrin Hatch. And thank you very much, Senator Sheldon Whitehouse.