As the confirmation hearing for Amy Coney Barrett’s appointment commences we are girding ourselves to be inundated with plenty of mewling and complaining from Democrats and the press. There will be constant complaints about the inappropriateness of the process, about how unethical the voting will be, and why it is wrong to make an appointment in an election year. Most of this will be delivered without much in the way of historical context.
The first objection we heard regarded how close to an election Ruth Bader Ginsberg had passed away. Many were saying that President Trump should not nominate an individual and he needed to wait until the election had taken place to see what will of the people becomes revealed. The implication is this is a rare spectacle, when in fact it is more commonplace than assumed.
There have been 44 presidents who preceded President Trump and exactly one half of them were placed into this position. Twenty-two presidents were faced with the scenario of replacing a Supreme Court seat in an election year, some with multiple openings. Those presidents went forward to nominate someone -- 29 times. So to suggest it is wrong for Trump to do so now is operating from ignorance. Nine times, in fact, a nomination has been made after an election, with eight of those selections confirmed. Something else you are unlikely to hear -- three of those times SCOTUS seats were confirmed for a president who lost their election.
The next complaint is also the loudest. There should be no confirmation taking place so close to an election, goes the narrative. The problem for the complainers is this too is fraught with historical precedent. Repeatedly it will be brought up that some of the very same Republican leaders in the Senate declared there would be no confirmation in 2016, President Obama’s final year, but this year, in the same situation, they are moving forward in supposedly hypocritical fashion. What is ignored is there is a difference; this is not the same situation.
Unlike this year, in 2016 you saw a divided government; the GOP held the Senate during a Democrat presidential term. This is where history also stings the critiques now being heard. The scenario of an election year appointment being voted on with a split government has actually been experienced ten times. Of those instances only once has the party controlling the Senate confirmed the justice prior to election, back in 1888. The rest either held confirmation until the election was completed, or was not even considered.
This was in truth a Senate norm, and one brought up in 1992 by the head of the Judiciary Committee at the time -- Joseph Biden. He gave a floor speech where he declared how President George Bush -- if a nomination were to come open -- would face opposition.
"Should a justice resign this summer and the president move to name a successor, actions that will occur just days before the Democratic Presidential Convention and weeks before the Republican Convention meets, a process that is already in doubt in the minds of many will become distrusted by all," he said. "Senate consideration of a nominee under these circumstances is not fair to the president, to the nominee, or to the Senate itself. Once the political season is under way, and it is, action on a Supreme Court nomination must be put off until after the election campaign is over."
When Mitch McConnell was in the similar position in 2016 he invoked what was dubbed "The Biden Rule," harking back to the words of the man who was the sitting vice president. Biden responded to this with a measure of dismay, indicating that his declaration at the time was taken out of context, and was the result of wanting to avoid another round of what he described as a "bruising and polarizing" confirmation of Justice Clarence Thomas.
Of course this glossed over how Biden himself was responsible for much of the contemptuous testimony during that Thomas confirmation. It was almost as if Biden was saying he HAD to call for stalling any further nominations, if only to avoid seeing himself carrying on in unacceptable fashion once again.
One other gripe that will be mentioned this week involves Mitch McConnell resorting to the so-called Nuclear Option in confirming Coney Barrett. This is another legacy from the Democrats, and one in which Biden is himself once again entwined. The reason that a vote alteration away from the prior standard of a 60-vote majority exists is rooted in the judicial confirmation process, specifically in the use of filibusters. This was a practice previously unused in SCOTUS hearings until 1968, but was becoming more acceptable in the ensuing years.
When Justice William Rehnquist was going through confirmation the Democrats, as the minority party, attempted to filibuster his confirmation. It required a cloture vote to block Ted Kennedy’s filibuster, something Biden voted against, siding with Kennedy. This became an issue once again in 2005, with the process to confirm Samuel Alito being met with Biden threatening filibusters to block his nomination. Then Democrats flexed this muscle even more, stepping down to filibuster nominees for appellate courts, as they did with Miguel Estrada.
The term "blind ambition" seems to typify the history of the Democrats. They have a lengthy record of failing to see how political lurches they make for more power can, down the line, be employed against them in similar fashion. When the Republicans began to adopt the Democrat method of filibustering lower court appointees -- something Joe Biden helped usher in as a norm -- Senate Majority Leader Harry Reid found this unacceptable. Reid altered the voting structure in the Senate in drastic fashion, eliminating the need for a 60-vote majority and altering the function of the Senate fundamentally.
Now today, like the use of the judicial filibuster, the Democrats are aghast that a GOP Senate is using the methods they have installed. The whiplash irony only continues with the Joe Biden presidential campaign, as he is now continuously avoiding questions on his intent to pack the Supreme court should he win the election. Considering his ever-shifting history with court appointments -- from filibusters to his Biden Rule -- the question becomes more and more valid.