Senate Republicans announced today that they would refuse to consider any candidate nominated by President Obama for the Supreme Court. The Constitution gives the Senate the right to offer advice and consent on Court nominees. The two bodies have frequently quarreled over just how much power each is entitled over a nomination. Sometimes, senators have granted presidents wide latitude. At other times, they have insisted on forcing the president to nominate a jurist with mainstream views. But never before in American history has the Senate simply refused to let the president nominate anybody at all simply because it was an election year.
One can defend the moral or procedural legitimacy of the Republican escalation. But few Republicans or conservative intellectuals have done so. Instead they have asserted that they are merely following historical precedent. This is demonstrably false.
Republicans formulated their no-nomination position in real time, literally within moments of Scalia’s death, and hastily backfilled in justifications only afterward. The first defense, offered up on the fly by Ted Cruz and Marco Rubio at the Republican presidential debate that happened to take place that night, relied on “80 years of precedent” of presidents abstaining from nominating anybody to the Court in an election year. This precedent has turned out to be a complete fiction. Presidents have nominated, and Senates have confirmed, numerous justices to the Court in election years, as law professor Amy Howe pointed out. The Senate did reject Abe Fortas’s elevation to chief justice in 1968, but it did so out of opposition to Fortas’s allegedly improper ties to the administration, not out of a principled rejection of President Johnson’s right to alter the Court in an election year.
The initial insistence that the Senate traditionally blocks any election-year appointments has fallen by the wayside for lack of any supporting evidence. Instead Republicans have fallen back to insisting that Democrats have advocated blocking Court nominees in an election year. It’s worth noting that evidence that members of a party have advocated something is far from saying that it’s a routine use of senatorial power; one can find examples of, say, Republicans advocating impeachment of President Obama merely because they disagree with his policies, but this would not make it routine for a future Democratic Congress to follow through on what had been loose talk. But even this far weaker bit of evidence turns out, on closer inspection, to have been trumped up.
The first alleged example of a Democrat advocating a full election-year blockade is a widely disseminated partial quote by Senator Charles Schumer from 2007 — “we should not confirm any Bush nominee to the Supreme Court except in extraordinary circumstances.” The coverage of Schumer’s remarks has usually excerpted the second, and sometimes the first, sentence. But the third sentence, transcribed by Josh Marshall, changes the context completely:
"We cannot afford to see Justice Stevens replaced by another Roberts or Justice Ginsburg replaced by another Alito. Given the track of this President and the experience of obfuscation at hearings, with respect to the Supreme Court at least, I will recommend to my colleagues that we should not confirm any Bush nominee to the Supreme Court except in extraordinary circumstances. They must prove by actions not words that they are in the mainstream rather than we have to prove that they are not.”
Schumer's clear point was that Bush’s previous two nominees had misleadingly presented themselves to the Senate as moderates who would respect precedent, and then gone on to demonstrate judicial activist tendencies. Schumer’s proposed solution was not to stop any Bush nominee, but to require evidence of their moderation in their judicial record, not merely in promises they would make. One could believe Schumer was demanding too much deference for the Senate. But he was not arguing that the Senate should refuse to consider any nomination at all.
An especially comic example of the mischaracterization of Schumer’s position comes from Charles Krauthammer, who informs his readers that Schumer “publicly opposed filling any Supreme Court vacancy until Bush left office. ('Except in extraordinary circumstances.' None such arose. Surprise!)." The last parenthetical passage is supposed to be a dagger revealing Schumer’s hypocrisy. But the circumstances did not arise because there was no Supreme Court vacancy at all. Schumer’s remarks, which did not say what Krauthammer claims they said, were completely hypothetical.
A second example of Democrats allegedly advocating the current Republican position comes from recently unearthed 1992 remarks by Joe Biden, then a senator, urging the Bush administration to delay hearings for a prospective justice until after the election. But Biden, while typically windy, was not advocating a blockade of any nomination by then-president George Bush. He was insisting that Bush compromise ideologically. “I believe that so long as the public continues to split its confidence between the branches, compromise is the responsible course both for the White House and for the Senate,” Biden said. “Therefore I stand by my position, Mr. President, if the President consults and cooperates with the Senate or moderates his selections absent consultation, then his nominees may enjoy my support as did Justices Kennedy and Souter.”
It is certainly true that Biden, like Schumer, was demanding broader latitude for the Senate. Both these remarks are within the historic tradition of senators tussling over how much say their chamber should have in the ideology of a new justice. But neither of them advocated flat-out blocking the president from any nomination, however moderate or well-qualified.
And maybe the old system, in which social norms dictate that the Senate allow the president to put his ideological imprint on the Court, is simply untenable in a polarized age. Maybe that system was bound to perish. (That’s the case I made.) And maybe the Democrats would have wound up becoming the party to kill that old system if they found themselves in the position Republicans currently occupy. But the clear fact is that they didn’t kill that system and they didn’t create the new one that is taking its place. The current Senate Republicans did.
Update: National Review's Ramesh Ponnuru replies to my characterization of Schumer. The thrust of Ponnuru's argument is to rely on the truncation of Schumer's quote. The last italicized line that I quote above shows that Schumer was not arguing against Bush's right to fill any vacancy at all; he was pushing back against what he perceived as the administration's practice of letting Court nominees furnish empty promises of moderation to cleanse their highly conservative records. Ponnuru simply repeats the same quote without the crucial final line. Ponnuru does not explain why Schumer's quote without the relevant context tells us more than the quote with context.
He proceeds to dispute Schumer's belief that previous Bush administration Court nominations were unacceptably conservative. But that is all beside the point. Obviously a conservative like Ponnuru is going to disagree with Democrats about what constitutes a conservative ideologue and what constitutes a moderate who merely follows precedent. Opposing parties have disagreed for decades about how far to the right (or left) the president can go with a nominee. Schumer and Biden were both arguing within the boundaries of that tradition — insisting that any future nominee must sit closer to the center than the president would like. But they were not disputing the president's right to appoint a mainstream, moderate justice of his own party to the open seat. Indeed, they both explicitly allowed for such a possibility, which Republicans currently refuse to consider.