In July 2013, Democrats controlled the Senate with a Democrat in the White House. Sen. Patrick Leahy (D-Vt.), then-Judiciary Committee Chairman, called on Republicans to “reconsider their double standard and not play politics with” the judicial branch.
Two years later, in a Republican-controlled Senate, Leahy called for “hold[ing] confirmation votes on the nominees before us. There is no reason,” he said, “for the double standard based on who is in the majority.”
Sounds good, but Leahy condemns confirmation double standards only when his party’s president is making nominations.
The judicial confirmation process today is all the proof anyone needs. First, look at the consideration of Supreme Court nominee Brett Kavanaugh. In 2009, Leahy chaired the hearing for President Barack Obama’s nomination of Justice Sonia Sotomayor. Leahy said that her “record on the federal bench” means that “we do not have to imagine what kind of a judge she will be because we see what kind of a judge she has been.”
The current Senate Minority Leader Chuck Schumer (D-N.Y.) agreed, saying that “everybody knows” that a nominee’s judicial record “is the best way to get a sense of what your record will on the bench in the future.” In fact, Schumer said that other kinds of information do “not even come close to analyzing the cases as to what kind of judge you will be.” An extensive judicial record, Schumer said, means that the hearing “will matter less” than for other nominees.
That was then. Today, even though Kavanaugh has been on the U.S. Court of Appeals longer than Sotomayor was, Democrats want to talk about anything but his judicial record. They have more than 10,000 pages of his judicial opinions but demand ever-more-obscure scraps of paper unrelated to any of his legal work.
Or consider the significance of a rating by the American Bar Association. Both Leahy and Schumer wrote to President George W. Bush in 2001, stating that the ABA’s rating is “the gold standard by which judicial candidates are judged.” Sixteen of President Donald Trump’s nominees to the U.S. Court of Appeals have received a unanimous well qualified ABA rating; Leahy voted against nine, Schumer voted against 13.
The ABA also unanimously gave Kavanaugh its highest well qualified rating. According to the ABA, this means that Kavanaugh is “a preeminent member of the legal profession, [has] outstanding legal ability and exceptional breadth of experience, and meet[s] the very highest standards of integrity, professional competence and judicial temperament.” Leahy and Schumer did not wait for this “gold standard” to announce their opposition to Kavanaugh.
Here’s a third confirmation double standard. In 2009, Schumer said that Sotomayor would base her decisions on the law rather than on whether the litigant was “sympathetic.” The nominee herself agreed, saying that the kind of judge she had proven herself to be “rel[ies] on the law to command the results in [each] case.”
Today, however — with Republican nominees — Senate Democrats care only about who the litigants are, whether they are sympathetic, and what the political impact of judicial decisions might be.
How can a Democratic nominee’s judicial record be the most important way to evaluate her nomination, making the hearing itself less important, but a Republican nominee’s even longer judicial record be ignored and the hearing’s significance be magnified? How can the ABA’s unanimous well qualified rating of a Democratic nominee be the “gold standard,” but the same rating of a Republican nominee matter nothing at all? And why does the command of the law matter for Democratic nominees, but the identity of the parties matter for Republican nominees?
Rather than a double standard “based on who is in the majority,” Democrats should follow their own advice, stop playing politics with the judicial branch, and hold confirmation votes on the nominees before the Senate.
This piece originally appeared in the Hill on 9/14/18.