On Feb. 13, Supreme Court Associate Justice Antonin Scalia was reported as having died while on vacation in Texas. Before the evening news could even report it to the nation, speculation swirled as to who would replace him. Senate Majority Leader Mitch McConnell vowed not to confirm any nominee President Barack Obama might send him, and Democrats pounced on those words and accused McConnell of obstructionism not yet seen in consideration of Supreme Court nominees. I’d like to begin by saying that I don’t agree with McConnell’s strategy here. I think he should’ve stayed quiet, memorialized Justice Scalia, and waited until Obama sent him a nominee. At which point, he could drag on the nomination hearings for months and ultimately reject the nominee. At least then the Senate would look to the American people like it was doing its job. McConnell instead may have backed himself into a corner. McConnell would probably prefer Obama’s nominee to the nominees of two potential presidential nominees, Ted Cruz, who frequently uses the “five lawyers in Washington” line to discredit the Supreme Court and question their authority in judicial review and has been an irritant of Senate leadership, or Donald Trump, who practically never spoke of Supreme Court Justices or rulings before this election season. Now, to stay true to his word, he would have to reject any nominees and wait until the next president is inaugurated in January 2017. That president’s name will be Clinton, Trump, Cruz, or Rubio, and McConnell is likely only satisfied with one of those options. Regardless, I would like to turn your attention to the claims of the Democrats regarding McConnell’s comments. Among the arguments most utilized is the argument that McConnell voted to confirm Justice Kennedy during an election year, and saying that fact makes McConnell a hypocrite. In the words of the late Justice Scalia, that argument is “pure applesauce.” What Democrats fail to mention is the full story. They fail to disclose their own varied collective past on nominations of Supreme Court nominees. In June of 1987, Associate Justice Powell announced his resignation from the Supreme Court. Days later, Senate Majority Leader and Democrat Robert Byrd said that President Reagan’s possible nomination of D.C. Circuit Appellate Judge Robert Bork to the vacant SCOTUS seat “would be inviting problems” in the Senate. The Democratic Whip, Alan Cranston of California, sent a letter to his Democratic colleagues instructing them to form a “solid phalanx” against Reagan’s nominee. “‘I’m going to hit them where it hurts,’ he said, referring to delaying planned recesses and keeping the Senate in session into November. ‘They're going to pay,’ he said.” All of these quotes can be found in the New York Times article here. The Democrats definitely made Republicans “pay” by obstructing the confirmation of Bork and ultimately rejecting him. After a long battle over Bork, Reagan nominated Anthony Kennedy in November of 1987, and he was ultimately confirmed to the Supreme Court in early February of 1988. That is the full story of McConnell’s vote during an election year, and it serves to make two points: First, that the timing and debate of a Supreme Court nominee was a full six months longer than what would be possible this time, and second, that Democrats have obstructed the nomination process in the past. This isn’t the only time that Democrats have obstructed the nomination process. In 2004, an election year in which Democrats hoped they would upend President George Bush, Senate Democrats invoked the “Thurmond Rule” to obstruct the confirmation process of some of Bush’s nominees. In 2007, Senator Chuck Schumer fought the idea of Bush appointing another Supreme Court Justice. “‘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 will likely be the Democratic Leader after Harry Reid retires and has been one of the loudest critics of McConnell’s vow not to confirm a new Justice. Schumer’s greatest regret of that Congress was that “Alito shouldn’t have been confirmed.” He said, “I should have done a better job. My colleagues said we didn’t have the votes, but I think we should have twisted more arms and done more.” Ironically, Bush White House spokeswoman Dana Perino responded to Schumer with a refrain that Democrats are currently pointing to Republicans, “Schumer's comments show a tremendous disrespect for the Constitution by suggesting that the Senate not confirm nominees.” Again, I’m not endorsing McConnell’s strategy for handling Supreme Court nominees, but Democratic Senators and strategists should be held to their statements and have their past obstructionism pointed out. As the old saying goes, live by the sword and you will die by the sword.
Kyle Palmer is a senior from Dillon Hall studying accountancy. He welcomes any challenges to his opinions. He can be reached at kpalmer6@nd.edu
