The five highest-ranking Democrats in the nation once staunchly defended the Senate’s constitutional role in the Supreme Court confirmation process.
Or at least they did, until now.
Now, President Obama, Vice President Joe Biden, Senate Minority Leader Harry Reid, Senate Democratic Conference Vice Chairman Chuck Schumer, and Senate Judiciary Committee Ranking Member Patrick Leahy are suddenly ignoring the constitutional role that the Senate is mandated in the Supreme Court confirmation process.
President Obama is demanding a rushed confirmation of his eventual nominee. He along with Vice President Biden, and Senators Reid, Schumer, and Leahy are not only ignoring the Constitution but also historic precedent that since at least 1880 stands firmly on the side to giving the American people a voice in choosing who the next Supreme Court justice will be when a vacancy arises in a Presidential election year.
But let’s look at what each of these men did and said when they were in the Senate faced with confirming Supreme Court nominees (not in an election year, where historic precedent favors delaying confirmation until the next officeholder, but in the middle of a President’s term in office).
Then-Senator Obama actually voted against Justice Alito’s confirmation to the Supreme Court, taking a leading role in an attempted filibuster against his nomination, something the White House now mysteriously says he “regrets.”
Regret was hardly the word to describe his position at the time. He eloquently described his view of the significant role played by the Senate in the Supreme Court confirmation process:
"There are some who believe that the president, having won the election, should have complete authority to appoint his nominee and the Senate should only examine whether or not the justice is intellectually capable, and an allaround good guy. That once you get beyond intellect, and personal character, there should be no further question as to whether the judge should be confirmed. I disagree with this view. I believe firmly that the Constitution calls for the Senate to advise AND consent. I believe that it calls for meaningful advice and consent that includes an examination of a judge’s philosophy, ideology, and record."
It would appear that President Obama is one of the “some who believe that the president, having won the election, should have complete authority to appoint his nominee” and that the Senate’s role is merely a rubber stamp. Though his position has changed, I don’t believe the words of the Constitution have.
Vice President Joe Biden:
When then-Senator Biden chaired the Senate Judiciary Committee, he nearly invented the filibuster of Supreme Court nominees. It was he who created the concept of “Borking” a nominee as he prevented President Reagan’s pick of Judge Robert Bork from being confirmed to the bench. Then-Senator Biden proclaimed:
"The framers clearly intended the Senate to serve as a check on the president and guarantee the independence of the judiciary," Mr. Biden said in August 1987 in defense of his newfound opposition to Judge Bork. "The Senate has an undisputed right to consider judicial philosophy."
Under Mr. Biden’s leadership, holding up nominations to the nation’s appeals courts also became a routine exercise. In 1988, the Senate Judiciary Committee delayed 17 months before refusing to confirm law professor and scholar Bernard Siegan to the Ninth Circuit Court of Appeals because of his libertarian positions on economic issues. . . . By 1992, 64 judicial nominees were stuck in the senatorial muck waiting for the Judiciary Committee to give them a yea or nay.
A once judicial obstructionist of legend is now mostly forgotten by today’s mainstream media.
"At its core, the filibuster is not about stopping a nominee or a bill, it’s about compromise and moderation. The nuclear option extinguishes the power of independents and moderates in the Senate. That’s it, they’re done. Moderates are important if you need to get to 60 votes to satisfy cloture; they are much less so if you only need 50 votes. Let’s set the historical record straight. Never has the Senate provided for a certainty that 51 votes could put someone on the bench or pass legislation."
A year later, Senator Biden quipped, "I think a filibuster makes sense when you have a prospect of actually succeeding." When Justice Alito’s nomination came before his committee, he declared, "If he really believes that reapportionment is a questionable decision . . . then clearly, clearly, you’ll find a lot of people, including me, willing to do whatever they can to keep him off the court . . . . That would include a filibuster, if need be."
Senate Minority Leader Harry Reid:
As Senate Majority Leader, Reid slashed much of the Senate’s historic role in confirming judges by invoking the “nuclear option” – removing the filibuster from the confirmation process of many judgeships, but notably not the Supreme Court.
Of course Senator Reid has been the leader of political partisanship, flip-flopping on the judicial confirmation process more than anyone else in the Senate. After leading the filibuster against President Bush’s nominee to a circuit court judgeship, Miguel Estrada, and vehemently opposing the “nuclear option,” he then invoked the “nuclear option” to remove the filibuster when his party took the Senate and the White House.
But one thing Senator Reid has said stands out. Judicial nominations are so important that the Senate’s constitutional role is “at best, we move slowly” in the confirmation process. And in regard to its constitutionally prescribed “advice and consent” on Supreme Court nominations, he chided, “The Senate will enact its will.”
Senator Schumer has been one of the most outspoken promoters of the Senate’s power in the nomination process, taking that position to the extreme.
In 2007, he declared that the Senate “should not confirm a [Bush] Supreme Court nominee EXCEPT in extraordinary circumstances.” He continued: "We should reverse the presumption of confirmation. The Supreme Court is dangerously out of balance. We cannot afford to see Justice Stevens replaced by another Roberts; or Justice Ginsburg by another Alito."
Of course, he too quickly abandoned this position this week.
Senate Judiciary Committee Ranking Member Patrick Leahy:
Senator Leahy is probably the clearest supporter of the historic precedent against Supreme Court justices being confirmed in an election year.
The Washington Post highlights Senator Leahy’s consistent statements through the years:
December 2006: "The Thurmond Rule, in memory of Strom Thurmond – he put this in when the Republicans were in the minority, which said that in a presidential election year, after spring, no judges would go through except by the consent of both the Republican and Democratic [leaders]. I want to be bipartisan. We will institute the Thurmond Rule, yes.”
November 2004: "Whether [Republicans] acknowledge it as the Thurmond Rule or something else, it is a well-established practice that in presidential election years, there comes a point when judicial confirmation hearings are not continued without agreement."
July 2004: "At this point in a presidential election year, in accordance with the Thurmond Rule, only consensus nominees being taken up with the approval of the majority and minority leaders and the chairman and ranking members of the Judiciary Committee should be considered."
Well, consistent until now. He quickly, claimed this week, “Well, there is no such thing as a ‘Thurmond Rule.’ I used to tease the Republicans about it.” Um . . . really, you were just teasing?
President Obama, Vice President Biden, and Sens. Reid, Schumer, and Leahy are welcome to their opinion (and they can flip-flop as much as they want – and trust me, they will), but they aren’t entitled to their own facts.
Historic precedent is clear. The Constitution is clear.
The Senate, as a co-equal branch of government, has a constitutionally prescribed role in the judicial confirmation process – “advice and consent.” Their advice should be simple: There should be no confirmation of a Supreme Court justice this election year, allowing the American people to choose the direction of our nation and the Supreme Court at the ballot box. They should refuse to give up their constitutional prerogative, at President Obama’s whim, and ensure that the American people have a voice.
At the ACLJ, we’re demanding that our next President be the one to select the next Supreme Court justice and thus allow the American people to have a voice. If you agree, sign our petition today.
You can also contact your U.S. Senators directly though this helpful link and demand the American people have a voice in selecting the next Supreme Court justice.
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