Democrat Hypocrisy On Supreme Court Appointments
The same Democrats who once railed against the prospect of a lame-duck Republican President appointing a Supreme Court Justice now encourage a lame-duck Democrat President to do just that.
Kayleigh McEnany
When it comes to nominating a Supreme Court Justice to replace Justice Antonin Scalia, hypocrisy runs deep.
Though the Obama Administration has blasted Republicans for refusing to give a potential nominee a hearing, its own Vice President – Joe Biden – once stood on the opposite side of the issue.
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In 1992, at the end of George H. W. Bush’s presidency, Biden advised: “If someone steps down, I would highly recommend the president not name someone, not send a name up. If he did send someone up, I would ask the Senate to seriously consider not having a hearing on that nominee.”
He went on to admonish:
Can you imagine dropping a nominee, after the three or four or five decisions that are about to made by the Supreme Court, into that fight, into that cauldron in the middle of a presidential year? I believe there would be no bounds of propriety that would be honored by either side. . . . The environment within which such a hearing would be held would be so supercharged and so prone to be able to be distorted.
Senate Judiciary Committee Chairman Charles Grassley affectionately dubbed this “The Biden Rules.”
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Likewise, in 2007, Senator Chuck Schumer remarked that then-President George W. Bush should not fill a Supreme Court vacancy “except in extraordinary circumstances.” He went on to say, “We should reverse the presumption of confirmation. 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.”
These same Democrats who once railed against the prospect of a lame-duck Republican President appointing a Supreme Court Justice now encourage a lame-duck Democrat President to do just that. They even go so far as to suggest that Republicans are abdicating their constitutional duty by refusing to give the nominee a hearing.
But is that so?
Let’s turn to the text of the Constitution, namely Article II, Section 2, which states: “[The President]… by and with the Advice and Consent of the Senate, shall appoint… Judges of the Supreme Court… .”
A plain reading of the text reveals both a mandatory and a discretionary duty.
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On one hand, it cuts in President Obama’s favor and against 1992 Joe Biden’s suggestion that he “would highly recommend” that “president [George W. Bush] not name someone” to the Supreme Court in the event of a vacancy. By using the term “shall” rather than “may,” the Founders quite clearly indicated that the President must nominate Justices. Thus, any suggestion that Obama should not nominate a replacement Justice clearly runs afoul of the Constitution.
On the other hand, the text does not mandate that the Senate must confirm the President’s nominee or even provide a hearing. Rather, the text merely says “with the advice and consent of the Senate,” without using mandatory language like “shall.” The text, therefore, suggests that the Senate holds the trump card – the power to confirm or deny and to hold a hearing or forgo one.
Moreover, American history confirms this understanding. Adam J. White wrote an excellent article in Harvard Journal of Law and Public Policy on this very matter. He makes two important findings.
First, he points to the fact that the Founders rejected an alternative Senate discretionary veto model proposed by James Madison, whereby the President’s nomination would automatically be confirmed unless the Senate rejected the appointment by a majority vote. White writes: “In short, Madison would have put the burden on the Senate, to affirmatively act to block a nomination. But the Framers rejected his proposal, and chose instead the ‘advice and consent’ model, placing the burden on the president (and his supporters) to convince the Senate to confirm his nominee.”
Second, he reveals that the adopted advice and consent model was based on the 1780 Massachusetts model of judicial appointments. Looking to Massachusetts, he “found myriad examples of nominations made by the governor that received no up-or-down vote from the ‘Privy Council,’ the body that provided constitutional advice and consent.”
Taken together, both text and historical analysis validate the Republican’s discretionary decision not to give the President’s nominee a hearing.
The President can cry constitutional abdication forevermore, but unfortunately for him the facts just are not on his side. And neither are the politically convenient remarks of Democrat opportunists like Joe Biden and Chuck Schumer.
President Obama may nominate a potential Justice; in fact, the Constitution compels him to do so. Nevertheless, it is well within Republican purview to “delay, delay, delay,” as Donald Trump rightly has advised the Party to do.
Kayleigh McEnany is a conservative writer and commentator who appears regularly on Fox and CNN. She is currently in the third year of pursuing her J.D. at Harvard Law School. Kayleigh graduated from Georgetown University’s School of Foreign Service and also studied politics at Oxford University. You can reach her by email at Kayleigh@PoliticalProspect.com or follow her on Twitter: @kayleighmcenany.
