Within hours of Justice Anthony Kennedy’s announcement on June 27 that he will retire from the Supreme Court, Senate Minority Leader Charles Schumer (D-N.Y.) said that considering President Trump’s nominee this year would be “the absolute height of hypocrisy.” He repeated the charge the next day.
Merriam-Webster defines “hypocrisy” as “behavior that contradicts what one claims to believe.” Schumer said that considering a Supreme Court nominee this year would be hypocrisy because of “the rule that [Republicans] set in 2016 not to consider a Supreme Court Justice in an election year.” If Republicans had said in 2016 that the Senate should never consider any Supreme Court nominee in any election year, he might be right. But, of course, they said no such thing.
Neither did Joe Biden, when he chaired the Judiciary Committee in 1992 — also a presidential election year. On June 25, 1992, he said that if a Supreme Court vacancy happened that year, the president should not nominate anyone and, if he did, the Judiciary Committee should not hold a hearing “until after the political campaign season is over.”
In 2016, even though Joe Biden was Vice President, President Obama did not follow that counsel. Despite knowing that his nominee would not be considered, he chose one anyway. The Senate, however, heeded Biden’s counsel and chose, under those unique circumstances, to allow the next president to fill the Scalia vacancy.
The Constitution gives the power to nominate and appoint judges to the president, not to the Senate. The Senate has a role of providing or withholding its “Advice and Consent” as a check on the president’s appointment power. But you won’t find a word about this in Article II of the Constitution, which spells out the power of the legislative branch.
So it’s no wonder that a presidential election was relevant to filling a Supreme Court vacancy that occurred in 2016, while the mid-term congressional election is irrelevant to filling one that occurred this year.
No one, Republican or Democrat, has ever said that the Senate should never consider a Supreme Court nominee in an election year. In fact, it did so as recently as 2010, confirming Obama’s nomination of Elena Kagan to the Supreme Court. If Republicans believed what Schumer is now claiming, they would have objected on the grounds that 2010 (like 2018) was a mid-term congressional election year. No one did.
Nor did anyone object to considering the Supreme Court nominations of Stephen Breyer in 1994, David Souter in 1990, William Rehnquist and Antonin Scalia in 1986, Harry Blackmun in 1970, or Arthur Goldberg and Byron White in 1962 because those were each a mid-term congressional election year. Why? Because no one, Democrat or Republican, has ever taken that position.
Needless to say, considering President Trump’s Supreme Court nominee this year would be doing what Republicans have said they believe, and that’s the opposite of hypocrisy.
That’s not to say that Schumer is unfamiliar with hypocrisy. During the George W. Bush administration, for example, he voted 25 times to filibuster judicial nominees. On Nov. 6, 2003, he boasted that “Yes, we are blocking judges by filibuster.” In fact, he said that doing so was “how it was intended to be.”
A decade later, however, Schumer voted to abolish those same filibusters so that Republicans could not do what he had done. That looks like “behavior that contradicts what one claims to believe.”
Anyway, Republicans did not say in 2016 that the Senate should never consider a Supreme Court nominee in any election year, and therefore doing so today doesn’t make them hypocrites.
This piece originally appeared in The Hill on June 29, 2018