Sep
27
Political Hypocrisy and the Vote for a Supreme Court Justice
“I am unaware that any nation of the globe has hitherto organized a judicial power in the same manner as the Americans…. A more imposing judicial power was never constituted by any people.” — Alexis de Tocqueville
As promised, President Trump has announced his nominee to replace the late Justice Ruth Bader Ginsburg on the United States Supreme Court. Her name is Amy Coney Barrett, currently serving as a judge on the U.S. Court of Appeals for the Seventh Circuit. Personally, I don’t think he could have picked a better candidate. But, this post isn’t specifically about Judge Barrett.
As you probably have heard or read, the Left is trying to claim that Trump cannot or should not put forth a nominee so close to a presidential election, and/or that the Senate should not bring it up for a vote. The MSM claims that confirming a new Justice would be hypocritical, pointing to Sen. McConnell’s blocking of Obama’s potential nominee, Merrick Garland, under similar circumstances back in 2016. They also quote various Republicans who, at the time, expressed their opinion that a SCOTUS nominee should not be considered prior to the general election. (I saw a meme with some of these quotes, but I neglected to save it and can’t find it now. Sorry. If one of you sees it, feel free to post it in the comments below.)
Without digging into those quotes, I will just say that this is to be expected. I’m not saying it’s good form or excusable, but politicians will try to argue or spin such things for the benefit of their party. And, to show you the other side, here are a few examples (H/T Mat Staver) of what the Democrats were saying back in 2016 to push for a confirmation:
“The American people deserve a fully staffed Court of nine.” (Vice President Joe Biden)
“The Constitution is 100% clear: The President of the United States has the right to nominate someone to be a Justice of the Supreme Court. [The] Senate’s function is to hold hearings and to vote.” (Sen. Bernie Sanders)
“The American people expect the president’s nominee to be given a fair hearing and a timely vote in the Senate.” (House Speaker Nancy Pelosi)
Senators will “do pretty much everything they can to avoid acknowledging the legitimacy of our democratically elected president,” said Sen. Elizabeth Warren. “I say to you: do your job. Vote for a Supreme Court nominee.”
“The blockade on filling a naturally occurring vacancy, in my view, is harmful to the independence of the Article Three branch.” (Sen. Tim Kaine)
Doesn’t sound like what they are saying now, does it? Quite the opposite, in fact. For example,
“The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, the vacancy should not be filled until we have a new president.” (Senator Chuck Schumer)
Of course, he is assuming (or desperately wishing) that the “new” president will be Biden and not the “old” president, Trump.
So, is McConnell really a hypocrite for having the Senate vote on Trump’s nominee? Here is what Tyler O’Neil had to say over at PJMedia:
1) “The McConnell rule”
“Contrary to many media reports, the McConnell rule is far more complicated than just “don’t nominate and confirm a Supreme Court justice in an election year.”
McConnell did not just adopt this more nuanced position from whole cloth for 2020, either. During his first press conference on the issue in February 2016, the Senate majority leader explained, “You’d have to go back to 1888 when Grover Cleveland was in the White House to find the last time a Senate of a different party from the president confirmed a nominee for the Supreme Court in an election year.”
“We know what would happen if the shoe was on the other foot,” McConnell added. “A nominee of a Republican president would not be confirmed by a Democratic Senate when the vacancy was created in a presidential election year. That’s a fact.”
In other words, the McConnell rule is as follows: The Senate should not consider a nominee from an opposite-party president when the vacancy opens up during an election year. Giving a Trump nominee a hearing now would not violate the McConnell rule.” [Note: Emphasis mine.]
Why? Because Trump currently has a same-party Senate to work with and an obligation to accomplish the conservative agenda he set out in his original campaign, which includes appointing originalist/textualist judges and justices on the courts. Speaking of…
2) The Left’s approach to the Supreme Court
“If President Donald Trump nominates a replacement for Ginsburg and the Senate confirms him or her, that will represent a key shift on the Court away from the Left’s living Constitution approach and toward Originalism, a return to interpreting the Constitution according to its original public meaning.
Democrats will complain that Trump is forcing the Court in a conservative direction, and to a certain degree, that is accurate. But that doesn’t mean Trump’s nominees are trying to reinterpret the Constitution to support their pet issues in the way that left-leaning judges have done for decades.”
Leftist activist judges have been reinterpreting and effectively rewriting the Constitution (and Bill of Rights) by finding imaginary “penumbras of the Bill of Rights” and newly-discovered rights of privacy and dignity (as defined by them) in what they consider to be a “living document”. (See Griswold v. Connecticut (1965), Roe v. Wade (1973), Obergefell v. Hodges (2015).) This approach arguably violates, for example, Article V and the 10th & 14th Amendments.
“[L]eft-leaning judges are neither originalist nor textualist. Biden has pledged to nominate judges and justices who adhere to the logic of Roe v. Wade, not just to its result.
McConnell’s decision to support a Trump nominee represents a restoration of the job of the federal judiciary.”
3) Democrats’ statements in 2016
See above, but here are a few more retrieved by O’Neil and Matt Margolis…
“Attn GOP: Senate has confirmed 17 #SCOTUS justices in presidential election years. #DoYourJob” (Sen. Chuck Schumer)
“The need for a ninth justice is undeniably clear. #DoYourJob” (Pres. Barack Obama)
“That’s their job. There’s nothing in the Constitution that says the President stops being President in his last year.” (Justice Ruth Bader Ginsburg, publicly calling on the Senate to go through with the Garland nomination)
“I think we hope there will be nine as quickly as possible.” (Justice Sonia Sotomayor)
I’ll also mention that in Feb. 2016 the Left-leaning Vox website published the article “Presidents have appointed Supreme Court justices in election years. This chart proves it.”.
Fun Fact: “Of the 29 [now 30] times a Supreme Court vacancy has occurred in an election year, 22 [now 23] different presidents nominated a replacement — either before the election or in the lame-duck period before the next presidential inauguration.”
This and related information about filling Supreme Court vacancies in election years can be found in an article by Fred Lucas at The Daily Signal. He asks and answers the following four questions:
1) What Happens When President’s Party Controls the Senate?
2) How Many Presidents Nominated Justices While Running for Reelection?
3) What Happens When the Opposition Party Controls the Senate?
4) What Presidents Made Lame-Duck Picks After the Election?
Lots of cool history there involving the three branches of American government, if you’re into that sort of thing.
I’ll finish with these words from Kay C. James, president of The Heritage Foundation:
“There is absolutely no reason for Senators who support the president’s nominee and who are satisfied with her credentials to reject her on the basis of timing…. The Constitution confers the power to confirm Supreme Court nominees to the Senate, and it should base its determination on the suitability of the nominee rather than disabuse itself of its constitutional authority.
Senators should not be cowed into giving up their constitutional power in response to tired political threats [e.g., packing the court and encouraging continued violence and civil unrest]…. They are an anathema to our very system of representative democracy. And as history shows, appeasement only makes tyrants more aggressive….
We need a full bench with nine justices so that ties can be broken, decisions can be final, and the court can continue its critical work without delay.”
Agreed.
