Almost immediately after the tragic passing of Supreme Court Justice Antonin Scalia, who was truly a giant of the court, Republicans and Democrats were scrambling to play politics with the situation. And for some reason, the media is acting like that’s unusual.
Democrats are clearly frustrated by the fact their historic midterm losses during the Obama presidency put them in a situation where they have little power to push through a liberal nominee on partisan lines.
To be fair, both parties have been putting forward some misleading statements. While Republicans have claimed the precedent to not confirm a nominee in an election year goes back 80 years. The real number appears to be closer to 76 years. That is also discounting Justice Kennedy who was confirmed in early 1988 although he was nominated the previous year. Regardless, Republicans can make a solid argument that this kind of situation doesn’t happen a lot.
Democrats have all of a sudden fallen in love with the Constitution and are claiming that it is the Republican’s constitutional obligation to confirm Obama’s nominee. Not accurate either. Nowhere in the Constitution does it say Republicans are required to hold a vote in a certain time frame or confirm a nominee. It only says President Obama can nominate one. Which he has every right to do and has already said he will.
The reality of this situation is that both parties throughout history have used judicial nominations as political power plays and for Democrats to cry foul now is nothing more than posturing.
Which brings us to Chuck Schumer. Chuck was caught red handed on a video from 2007 talking about how Democrats should under no circumstances confirm a George W. Bush nominee in the last 18 months of his tenure. Candidates like Ted Cruz have been saying the same thing and yet the media is hammering them for it. Here is the video of Schumer. Fast forward to the 24 minute mark.
When questioned about this video, Schumer deflected and pretended it wasn’t important anymore.
Schumer writes now that the argument he made in his 2007 speech was “based on hard right ideologues who did not follow precedent being approved to the court; not on a president’s right to nominate, but on the Senate’s right to advise and consent once a full confirmation process, as outlined in the Constitution, was undertaken by the Senate.”
While Schumer gave this speech in 2007, ironically it was Chief Justice Roberts in 2012 who saved Obamacare, by upholding the individual mandate in Obama’s signature healthcare law as a “tax,” rather than as a penalty required by the law.
That’s nice. But it isn’t accurate.
From Daily Caller:
But Schumer’s explanation doesn’t appear to line up with his remarks at the time. While it is certainly true that he never calls for avoiding hearings, as some Republicans have suggested, it is absolutely the case that he proposed categorically rejecting any new nominees Bush put forward.
In his speech to the American Constitution Society, Schumer was reflecting on his experience with the confirmations of John Roberts and Samuel Alito, whose elevation heralded a conservative shift by the Supreme Court. After claiming Democrats were “hoodwinked” by Alito and Roberts at their confirmation hearings, Schumer lays out his proposals for how Democrats should act going forward.
Despite his piece on Medium, it is clear Schumer was not calling for Democrats to “entertain” voting against a Bush nominee. He was saying Democrats should absolutely vote down any nominee unless unclear “exceptional circumstances” dictated otherwise.
The full text of Schumer’s speech further belies his claim that Democrats would only have had to decide against a nominee after a full hearing. Much of Schumer’s speech consists of him arguing that confirmation hearings are inherently unreliable and not a good way to vet a candidate for the Supreme Court.
At best, Schumer is being disingenuous about this video that clearly shows him urging his party to reject any Bush nominee, which is exactly what some Republicans have called for in this situation. Some, not all.
At worst, he is categorically lying about his contribution to partisan politics.
You be the judge.
Frankly, that’s kind of how it works. And ignoring that glaring reality is a problem.
Getting worked up about Republicans and Democrats both using the tools they have at their disposal to decide the future of the Supreme Court is not only a waste of time but it ignores hundreds of years of political history.