Senators Flip-Flop on Supreme Court Vacancies, Take Factually Wrong and Misleading Position

COMMENTARY Courts

Senators Flip-Flop on Supreme Court Vacancies, Take Factually Wrong and Misleading Position

Sep 26th, 2020 3 min read
COMMENTARY BY
Thomas Jipping

Deputy Director, Center for Legal and Judicial Studies

Thomas is the Deputy Director of the Edwin Meese III Center for Legal and Judicial Studies and a Senior Legal Fellow.
The Democrats want people to believe that the circumstances surrounding the current Supreme Court vacancy are identical to those surrounding the vacancy in 2016. Matt Anderson / Getty Images

Key Takeaways

Those who objected to deferring the confirmation process in 2016 said that circumstances do not matter.

In addition to being factually incorrect, the Democrats’ letter is misleading because it ignores Senate Democrats’ long record of shifting partisan standards.

Whatever the arguments for or against a particular way of handling a particular nomination, it’s important to tell the whole story and to tell it accurately.

The day after Supreme Court Justice Ruth Bader Ginsburg’s death Sept. 18, Senate Judiciary Committee Democrats wrote Chairman Lindsey Graham, R-S.C., urging him not to “consider any nominee to fill Justice Ginsburg’s seat until after the next President is inaugurated.”

The Democrats want people to believe that the circumstances surrounding the current Supreme Court vacancy are identical to those surrounding the vacancy in 2016 and that, therefore, the two vacancies should be handled the same way. This position is both factually wrong and seriously misleading.

It’s factually wrong because the circumstances have changed. One week after Supreme Court Justice Antonin Scalia died on Feb. 13, 2016, Senate Judiciary Committee Republicans wrote Majority Leader Mitch McConnell, R-Ky., saying “this Committee will not hold hearings on any Supreme Court nominee until after our next President is sworn in on January 20, 2017.”

This position did not reflect opposition to a particular nomination; Democratic President Barack Obama had not yet made one. Instead, the letter noted that there was “divided government.” As a result, different political parties controlled the nomination and confirmation stages of the appointment process.

The letter from the Republican senators also referred to the election of “our next President” because, with Obama ineligible to run for a third term, the 2016 election would certainly produce a new occupant of the Oval Office.

Those who objected to deferring the confirmation process in 2016 said that circumstances do not matter. A group of 33 law professors, for example, wrote Obama that “the Senate’s constitutional duty to ‘advise and consent’—the process that has come to include hearings, committee votes, and floor votes—has no exception for election years.” If their position is correct, then it obviously supports filling the Ginsburg vacancy now.

In contrast, those who supported deferring the confirmation process in 2016 said that circumstances do matter. If their position is correct, it also supports filling the Ginsburg vacancy now, because the key circumstances have changed.

Today the same party controls the executive branch and the Senate. This is the final year of President Trump’s first term, which means that the incumbent may indeed continue in office if he is reelected. Different situation, different plan.

In addition to being factually incorrect, the Democrats’ letter is misleading because it ignores Senate Democrats’ long record of shifting partisan standards.

In 1992—a presidential election year with divided government and a Republican president—the Senate Judiciary Committee chairman said that if a Supreme Court vacancy occurred, the process for filling it should be put aside until the election season was over. But in 2016—another presidential election year with divided government but with a Democratic president—Democrats took the opposite position.

In 2005, while filibustering GOP appeals court nominations, then-Democratic Leader Harry Reid of Nevada said that the Senate had no obligation to consider, let alone vote on, a president’s nominations. As noted, Democrats took the opposite position in 2016 under a president from their own party.

And speaking of filibusters, on June 18, 1998, with a Democrat in the White House, Sen. Patrick Leahy, D-Vt., said: “I have stated over and over again on this floor that I would … object and fight against a filibuster on a judge, whether it is somebody I opposed or supported.”

Later that year, Leahy explained “how improper it would be to filibuster a judicial nomination.” Just a few years later, he voted 25 times to filibuster Republican judicial nominations. In 2013, he was the presiding officer when Senate Democrats abolished nomination filibusters. And since Trump took office, Leahy has voted 85 times for the very filibusters that he sought to abolish.

Leahy is not alone. Senate Minority Leader Chuck Schumer, D-N.Y., also voted 25 times to filibuster Republican President George W. Bush’s judicial nominations. He too voted in November 2013 to abolish the very nomination filibusters that Democrats had used.

And in the last four years Schumer has voted 125 times to filibuster Trump’s judicial nominations. The real kicker is that, just days ago, Schumer accused Republicans of “double cross[ing] their own standards when it’s politically advantageous.”

Whatever the arguments for or against a particular way of handling a particular nomination, it’s important to tell the whole story and to tell it accurately.

This piece originally appeared in Fox News