Remember when President Obama nominated D.C. Court of Appeals Judge Merrick Garland to the Supreme Court? Remember the GOP rightfully held out on his nomination? Remember when the Left tried to shame the GOP into holding a confirmation hearing and vote for Garland saying it must be done for the sake of government?
This is what then-Sen. Harry Reid wrote in a Washington Post op-ed in February of 2016 [emphasis mine]:
We are entering uncharted waters in the history of the U.S. system of checks and balances, with potentially momentous consequences. Having gridlocked the Senate for years, Republicans now want to gridlock the Supreme Court with a campaign of partisan sabotage aimed at denying the president’s constitutional duty to pick nominees.
This constitutional duty has transcended partisan battles because it is essential to the basic functioning of our co-equal branches of government. By ignoring its constitutional mandate, the Senate would sabotage the highest court in the United States and aim a procedural missile at the foundation of our system of checks and balances.
If my Republican colleagues proceed down this reckless path, they should know that this act alone will define their time in the majority. Thinking otherwise is fantasy. If Republicans proceed, they will ensure that this Republican majority is remembered as the most nakedly partisan, obstructionist and irresponsible majority in history. All other impressions will be instantly and irretrievably swept away.
Coming from Reid, that’s rich. But there is precedent for not confirming Supreme Court nominations during an election year; then-Sen. Joe Biden came up with the rule. Also, an eight-member Court isn’t the end of the world either. Our judicial system has remained intact since Senate Republicans held the line on not confirming Garland. Now, it looks like Senate Democrats are about to do the same thing, with the incoming Trump White House. They’re going to hold the line on whomever he nominates to fill the late Justice Antonin Scalia’s vacancy. Senate Minority Leader Chuck Schumer said he’s prepared to go to the mattresses on this one (via Roll Call):
Senate Minority Leader Charles E. Schumer is preparing to block President-elect Donald Trump’s Supreme Court nominee if he or she is not in the “mainstream.”
“It’s hard for me to imagine a nominee that Donald Trump would choose that would get Republican support that we could support,” the New York Democrat told MSNBC’s Rachel Maddow Tuesday night.
Asked if he would do his best to hold the seat open, Schumer responded, “Absolutely.”
Schumer said Democrats are going to push for a “mainstream” nominee. He noted that Supreme Court nominees are subject to a filibuster, meaning 60 votes are necessary to end debate on the nomination. Republicans hold 52 seats in the new Congress, meaning some Democrats would have to back Trump’s pick for the nomination to move forward.
“If they don’t appoint someone who’s really good, we’re going to oppose him tooth and nail,” the minority leader said. “They won’t have 60 votes to put in an out-of-the-mainstream nominee.”
In other words, Democrats are saying Trump will need to find—ideally—a liberal jurist, or worse yet—a Clinton-like pick to replace Scalia. That’s not going to happen. For starters, the GOP base would be in revolt. Second, eight votes is a hurdle, especially with a Democratic Party smaller, more liberal, and enraged that Lady Macbeth couldn’t win in November. If the GOP could hold out against the media and liberal onslaught in holding out on Garland, though there was precedent for it, then we should expect a response in kind from Democrats. And it’s going to be annoying.
Senate Republicans holding their ground may have contributed to Trump’s win, as 21 percent of the electorate saw the Court as an important factor in their vote. Nevertheless, Democrats can use their shoddy talking points, like the majority voted for Democrats in the Senate elections, to bolster their intransigence, despite the upper chamber’s contests not being the best gauge for such a declaration. The Senate races were roughly one-third of the entire body, with one race being held in the most populous, and most Democratic, state in the country in which no Republican was on the ballot. As Guy noted, the House races, in which all 435 members are up for re-election is a better gauge—and the GOP garnered 3 million more votes than Democrats.
Yet, back to the Alamo situation we could have with SCOTUS, Democrats could get accusations of hypocrisy thrown at them by the GOP and the media, namely that they seemed to have this sense of urgency when Obama and Garland were in the picture. Still, the level of media scrutiny isn’t going to be as intense if the roles were switched. Schumer will have an easy time brushing off such attacks, noting the eight-vote hurdle. As that obstacle prevents a cloture motion, the Left and their allies, the media included, will also tear apart Trump’s nominee. Their record, their lives, all will be fair game. Heck, the news media now uses traffic tickets to attack Republicans. And all of this while pressure builds on the incoming Trump White House to pick someone more moderate, like Garland. It’s a game of endurance. The GOP has proven themselves by stonewalling and nixing the Garland nomination. For Democrats, it’s to be determined.
In 2007, at the American Constitution Society, Schumer said that any potential Bush nominees to the Supreme Court should be blocked (via Politico c. 2007):
“We should reverse the presumption of confirmation,” Schumer told the American Constitution Society convention in Washington. “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.”
Schumer’s assertion comes as Democrats and liberal advocacy groups are increasingly complaining that the Supreme Court with Bush’s nominees – Chief Justice John Roberts and Associate Justice Samuel A. Alito – has moved quicker than expected to overturn legal precedents.
Senators were too quick to accept the nominees’ word that they would respect legal precedents, and “too easily impressed with the charm of Roberts and the erudition of Alito,” Schumer said.
Of course, Schumer was not happy that the GOP used his own words against him in the Garland fight. Well, that’s not how this works, Senator. At the same time, in terms of being an obstructionist this Congress, it looks like the apple doesn’t fall too far from Harry Reid’s tree.