Breaking Judicial Norms: A History
By: The Editorial Board (WSJ)
S E E D E D C O N T E N T
Senate Minority Leader Chuck Schumer is widely reported to have told his Democratic colleagues on Saturday that “nothing is off the table for next year” if Republicans confirm a Supreme Court nominee in this Congress. He means this as a threat that Democrats will break the filibuster and pack the Court with more Justices in 2021 if they take control of the Senate in November’s election.
So what else is new? Democrats have a long history of breaking procedural norms on judges. While packing the Court would be their most radical decision to date, it would fit their escalating pattern. Let’s review the modern historical lowlights to see which party has really been the political norm-breaker:
• The Bork assault . When Ronald Reagan selected Robert Bork in 1987, the judge was among the most qualified ever nominated. No less than Joe Biden had previously said he might have to vote to confirm him. Then Ted Kennedy issued his demagogic assault from the Senate floor, complete with lies about women “forced into back-alley abortions” and blacks who would have to “sit at segregated lunch counters.” Democrats and the press then unleashed an unprecedented political assault.
Previous nominees who had failed in the Senate were suspected of corruption (Abe Fortas) or thought unqualified (Harrold Carswell). Bork was defeated because of distortions about his jurisprudence. This began the modern era of hyper-politicized judicial nominations, though for the Supreme Court it has largely been a one-way partisan street.
No Democratic nominee has been borked, to use the name that became a verb. Even Justice Sonia Sotomayor, whose left-wing legal views were obvious upon her nomination, received a respectful GOP hearing and was confirmed 68-31 with nine GOP votes. Justice Ruth Bader Ginsburg was confirmed 96-3, Stephen Breyer 87-9, and Elena Kagan 63-37.
Democrats, meanwhile, have escalated to character assassination. Clarence Thomas was unfairly smeared on the eve of a Senate vote and barely confirmed. Democrats accused Samuel Alito of racism and sexism for belonging decades earlier to an obscure Princeton alumni group.
Democrats promoted the uncorroborated claims of women accusers against Brett Kavanaugh from his high school and college years. Sen. Sheldon Whitehouse undertook a deep dive into Justice Kavanaugh’s high-school yearbook. This treatment has become the real Democratic Party “norm.”
Miguel Estrada
• Filibustering appellate nominees . It’s mostly forgotten now, but in George W. Bush’s first term Senate Democrats pioneered the use of the filibuster to block nominees to the circuit courts. That was also unprecedented.
Miguel Estrada was left hanging for 28 months before he withdrew, though he had support from 55 Senators. A 2001 Judiciary Committee memo to Sen. Dick Durbin was candid in urging opposition to Mr. Estrada because “he is Latino” and couldn’t be allowed to reach the D.C. Circuit Court of Appeals lest he later become a candidate for the Supreme Court.
Democrats also filibustered or otherwise blocked appellate nominees Priscilla Owen, Janice Rogers Brown, Charles Pickering Sr., Henry Saad, Carolyn Kuhl, William Pryor, David McKeague, Richard Griffin and William Myers, among others.
This violation of norms was stopped only after the GOP regained the majority and threatened to change Senate rules. A handful of Senators in both parties then negotiated a deal to vote for nominees except in “extraordinary circumstances.” Republicans did not unilaterally break the filibuster for judicial nominees.
• Breaking the filibuster for appellate nominees . That norm-breaker was executed by Democrats in 2013, led by then Majority Leader Harry Reid with the enthusiastic support of Barack Obama. Democrats rewrote Senate rules in mid-Congress, on a party-line vote, to add three seats to the D.C. Circuit. The goal was to stack that court with liberals who would rubber stamp Mr. Obama’s “pen” and “phone” regulatory diktats.
Those liberals have done that numerous times, while sometimes blocking President Trump’s deregulatory rule-makings. But the political cost has been high, as we warned at the time. Harry Reid’s precedent allowed GOP leader Mitch McConnell to do the same when Democrats tried to filibuster Neil Gorsuch. The GOP majority can now confirm Mr. Trump’s next nominee with 51 votes.
Urged on by the progressive media, Democrats are now vowing that they’ll break the 60-vote legislative filibuster rule to add two, or even four, new Justices to the Supreme Court next year for a total of 11 or 13. But they have already been saying this for months. Barack Obama gave the green light when he used John Lewis’s funeral to call the filibuster a “Jim Crow relic.” Never mind that as a Senator he endorsed a filibuster of Mr. Alito. Mr. Whitehouse and four colleagues explicitly threatened in an amicus brief that the Court would be “restructured” if Justices rule the wrong way.
Republicans could surrender and not confirm a nominee, and Senate Democrats would still break the filibuster. Court packing would then become a sword hanging over the Justices if they rule contrary to the policy views of the Senate left. Leader Schumer won’t resist because he is quaking at the prospect of a primary challenge from Rep. Alexandria Ocasio-Cortez in 2022.
Judges were also on the Senate ballot in 2018 after the Kavanaugh ugliness. The GOP gained two net seats. The use of their elected Senate power now to confirm a nominee would be a wholly legitimate use of their constitutional authority. They should not be cowed by Democratic threats from confirming a nominee. Democrats have shown they will do what they want with Senate power no matter what Republicans do now.
What Republicans should do is let the voters know about the Democratic filibuster and court-packing plans, and make them a campaign issue. Democratic Senators and candidates should have to declare themselves not merely on Mr. Trump’s nominee but on the filibuster and court-packing that Mr. Schumer has now told the country will be on the table.
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Question: when in an election year would it be appropriate for a sitting president to nominate a Supreme Court candidate?
Answer: If it's up to democrats and the president is Republican, the answer is "never!"
So where are we?
Schumer is threatening Senate Republicans on what dems are likely to do anyway should they win over the Senate. They want to pack the courts in retaliation for all the judges this President has appointed and McConnell depriving them of a Supreme Court pick. Pelosi wants to impeach the President again and the media is reminding us of what Republicans said about the Garland nomination, while forgetting what democrats said about it.
The nastiness begins today!
Sen. Dick Durbin was candid in urging opposition to Mr. Estrada because “he is Latino” and couldn’t be allowed to reach the D.C. Circuit Court of App
and he’s still in the Senate. Another racist democrat
I distinctly remember that, (they wanted to appoint the first one) so maybe it is fitting that President Trump nominate Barbara Lagoa.
That would really upset the race based progressives, wouldn't it?
Just remember - If Republicans dare to do what we would do everything is on the table!
Sorry, Chuck, the President will nominate someone on Friday or Saturday and it will be a woman. Btw, she may not really answer ideological questions or go into personal beliefs - you understand - it's called "the Ginsburg rule!"
Sean: thanks for stopping by.
Time after time, now, Republicans are using this as their rationale for voting on a SC nominee - only when the same party holds the senate majority and the presidency is it acceptable to confirm a Supreme Court justice in a presidential election year.
The problem with this "rule" is that is doesn't exist. It is a new "rule" that no one has ever mentioned before. In 2016 no one used that argument to deny Merrick Garland a hearing or a vote. Rather, the Republicans at that time said there would be no confirmation because the American people deserved to have a voice on who the next SC justice would be through their vote for president.
Now the same situation exists as existed in 2016. Now the republicans tell us that the voters should no longer have that voice because the president and the senate are of the same party. It's nonsense as an argument.
Actually it has a degree of logic to it. In the last 3 Senate elections the people have voted in a Republican majority. They chose Donald Trump and he was explicit in what he intended to do with Judicial nominees. It appears that the people have voted for Originalist Constitutional Justices. However, this argument is really unnecessary. As you already indicated - it is not a rule.
As a matter of fact we need only remember the appointment of Stephen Breyer:
" The nominees were held up at the same time that in an unprecedented move, the Senate chose to take up Carter's November 13, 1980, nomination—after he already had lost the 1980 presidential election to Ronald Reagan —of Stephen Breyer to an appellate judgeship on the United States Court of Appeals for the First Circuit . The Senate wound up confirming Breyer (whom President Bill Clinton appointed to the United States Supreme Court in 1994) during the lame-duck session of the 96th Congress the following month. (Breyer's appellate court confirmation in 1980, which was the result of support from both Democrats and Republicans on the Senate Judiciary Committee , often is cited as evidence disproving the existence of the Thurmond Rule.)"
In other words Carter had already lost the election and the democrats had lost their Senate majority, yet on their way out the door they appointed Stephen Breyer!
What else have you got Vic ?
So what, John?
If a lame duck president and a lame duck Senate can do it on the way out the door anybody can do it!
When it comes to what happened in 2016 , My opinion is that it was purely political . we had an outgoing president whom could not run for another term of office from one party , and a senate controlled by the other. So i believe that Garland was "BORKED" without having to go through the trials and tribulations of any actual hearing , which i think is a good thing because he is still a sitting justice within the system.
Do i think if the senate had been controlled by the same party as the president at the time things would have been different ? Yes i do and garland would be a sitting associate justice on the USSC. .
The only 2 things i see the same in the situation in 2020 , is that a vacancy opened up during an election year , and the possability of filling that vacancy with a justice with an opposite idealogical view exits that would shift the balance of view in the court.
The major difference I see is that this time around , both the executive and the legislative bodies involved are both controlled by the same party and are now either in races to retain their offices , or are eligible for more terms.
First, thanks for having the courage to speak here.
Mark, let us not forget the tremendous gamble McConnell took with the Garland move. Hillary Clinton figured to win that election easily. Obama was offering up a moderate, while a president Hillary Clinton would have most likely given us another hard core lefty.
doesnt take courage , just conviction and integrity , and an opinion is simply an opinion held by a single individual.
as stated , that is my opinion.
You are correct, as Harry Caray used to say "I guess I'm just a worrier."
There is no "rule" concerning the senate and president being of the same party, and as such cannot be used as a rationale for a nomination now, in the face of numerous statements by sitting senators over the past couple years plainly indicating they would not vote for a nominee in a presidential election year.
Either be a man or woman of your word about such a consequential subject or get the hell out of congress.
Correct, there isn't!
and as such cannot be used as a rationale for a nomination now
It is not the rationale. The only rationale is that the Republicans have the power to do it and the democrats would do the same if the situation were reversed.
in the face of numerous statements by sitting senators over the past couple years plainly indicating they would not vote for a nominee in a presidential election year.
That is fine! We can afford 4 no votes from Republican members. (I welcome the no votes - I want them re-elected!)
Either be a man or woman of your word about such a consequential subject or get the hell out of congress.
Oh yes, you promised!
John i spoke of no made up "rules " i spoke of how it appeared to me and gave my opinion on what i saw happen and is happening now .
Do you think i was wrong when i said i thought that if the senate had been in democratic control that garland would be sitting on the USSC?
As for the senators , the only 2 i care about are the ones that represent the state i live in , the others i have no control over and do not have a vote in their sitting in the senate.
Obama had almost a year left on his term when he nominated Garland. The Supreme Court was supposedly ill-prepared to be down a justice for the year + it would have taken if Obama waited for the next president the following January. Right now we are four moths, or one third as long as 2016, away from the new presidency. So it is considerably different in that regard. But would the Democrats have confirmed Garland? Probably, although in 2016 the senate was still operating under the belief that a Supreme Court nomination vote could be filibustered, and the democrats would have had to say that was no longer the case, as McConnell did when Gorsuch was confirmed with 54 votes in 2017.
That is a ridiculous basis for conducting the country's business in the Senate. It is not even provable. However, the statements by various Republican senators, including McConnell , saying that there should not be Supreme Court votes in presidential election years are provable.
and you see why my opinion on what happened is it was purely "politics" ?
Why is that?
I assume you prefer all the Republicans act like John McCain, sort of demonstrating maximum integrity on every level, while the dems act like Ted Kennedy, smearing & destroying lives, as they remind those they've trashed that "it wasn't personal!"
So what? Biden and Schumer have said the same.
She sure has a lot of imaginary arrows in her "quiver"! This time, she wants to impeach Trump for doing his job as stated in the US Constitution.