After Scalia, Parties Flip on Senate’s ‘Duty’ on Nominations

Supreme Court: What’s the State of Play Post-Scalia?
  • Democrats who hoped to block Bush's judges now crying foul
  • Republicans demanded floor votes and fair process a decade ago

Supreme Court Justice Antonin Scalia’s death has already revealed an essential truth about Washington: No issue prompts more blatant flip-flops than the prospect of putting someone on the Supreme Court.

Senate Majority Leader Mitch McConnell’s declaration that the next president should fill Scalia’s seat is the culmination of years of intensifying power politics over court picks -- a far cry from a generation ago when the Senate installed Justice Anthony Kennedy by a 97-0 vote in a presidential election year.

This time, it’s Republicans who say they have the right to block President Barack Obama from making the choice, prompting Democrats to complain loudly about Republicans abdicating their responsibility to give the president’s pick an up-or-down vote.

But a decade ago Democrats were on the other side, trying to slow down President George W. Bush’s judicial nominations, particularly at the circuit court level.

By 2007, Senator Chuck Schumer of New York declared that Democrats should have been tougher in considering Bush’s nominations of John Roberts as chief justice in 2005 and Samuel Alito as an associate justice in 2006.

"I will do everything in my power to prevent one more ideological ally from joining Roberts and Alito on the court,” Schumer said.

Advice, Consent

Who helped lead the charge to speed up confirmations back then? Mitch McConnell, who in 2005 accused the Democrats of changing "the Senate’s ‘advise and consent’ responsibilities to ‘advise and obstruct.’"

He added, "Many of us had hoped that the politics of obstruction would have been dumped in the dustbin of history."

He wasn’t alone. Majority Whip John Cornyn of Texas, Alabama’s Jeff Sessions, Orrin Hatch of Utah and others still prominent in the Scalia debate all weighed in, saying the Democrats’ tactics to thwart Bush nominees subverted the Senate’s duty to consider and vote on judicial nominations.

Back then, both sides crafted a compromise where some Bush picks got through and others were rejected.

This time around, it’s far more difficult to envision any kind of compromise, with the clock ticking on Obama’s presidency. The Senate is more divided than ever, with each side upping the ante in their tactics on nominations when control of the Senate changes.

The stakes could hardly be higher, given that the next Supreme Court member would help determine the composition of the court for years.

Republican Blockade

Within an hour after Scalia’s death was announced by the court, McConnell said he wanted the vacancy to be filled by the next president. McConnell hasn’t explicitly ruled out hearings or a floor vote on Obama’s pick, but most Senate Republicans have made it clear they would oppose any of his potential nominees.

Only Susan Collins of Maine, Mark Kirk of Illinois and Thom Tillis of North Carolina have broken from the pack so far and sounded potentially open to confirming a nominee. On Tuesday, Judiciary Chairman Chuck Grassley of Iowa didn’t rule out at least holding a hearing.

In a sense, a Republican blockade is the logical next step in the increasingly polarized Senate. Partisan fights over nominations have soared in the decades since President Ronald Reagan’s pick of Kennedy was confirmed overwhelmingly by a Democratic-controlled Senate in February 1988, the final year of Reagan’s presidency.

Nuclear Option

By 2005, Republicans were so incensed at Democrats for filibustering and stalling circuit court nominations made by Bush that they considered invoking the so-called nuclear option -- unilaterally gutting the 60-vote margin needed to advance nominations and instead allowing a simple majority to prevail.

That was only averted by a compromise brokered by the Gang of 14 -- a bipartisan band of Democrats and Republicans who sought to preserve the old traditions of the Senate and who divided up which nominees would be allowed to head to the bench and which wouldn’t.

That compromise now seems utterly quaint. 

Only three of the 14 are still in the Senate: John McCain of Arizona, Lindsey Graham of South Carolina and Collins.

Democratic Backlash

After the Senate easily confirmed Alito in 2006 with the help of the Gang of 14, Democrats faced increasing pressure from their liberal base.

That was when Schumer said there should no longer be a presumption that Bush or other Republicans would get similarly conservative Supreme Court nominees confirmed.

Schumer’s remarks from 2007 have now become such a rallying cry for Republicans that Schumer wrote a memo Tuesday declaring that his obstructionist plans weren’t of the same variety as what the Republicans are describing.

“Republicans are attempting to shirk their duty in a way that would be simply unprecedented in our nation’s history,” Schumer declared. Senate Minority Leader Harry Reid of Nevada separately scolded Republicans in a Washington Post op-ed. 

“If we enshrine this precedent and declare a functioning Supreme Court optional, subordinate to the whim of the Senate majority, it is easy to envision a future where the Supreme Court is routinely crippled,” Reid wrote. “If my Republican colleagues proceed down this reckless path, they should know that this act alone will define their time in the majority.”

No Slow-Walking

There’s no shortage, meanwhile, of Republicans who flogged Democrats for slow-walking Bush’s judicial nominations and who now back a nearly yearlong Supreme Court blockade.

Hatch, the Republicans’ elder statesman on judicial picks, went to the floor in April 2008 to call for floor votes, citing history going back to the Civil War of the Senate confirming judges even in the final year of a presidential term.

“We are failing to do our duty,” Hatch said. “The majority has already virtually shut down the judicial confirmation process,” he lamented. “The Senate has not always operated this way. The majority is simply refusing to do what the American people sent us here to do because, I guess, simply, they can. That may be the reason, but it is certainly no excuse.”

Despite all the talk of “duty,” there is no explicit requirement to actually vote on a nominee, although that’s something senators have occasionally sought to change.

Guaranteed Vote

In 2008, Republican Senator Arlen Specter of Pennsylvania, noting the steady deterioration in confirming judges at the end of a term of a president of the other party, offered a plan that would have applied to exactly this situation: a guarantee that judicial nominations, including Supreme Court picks, would at least get a hearing and a vote in the Judiciary Committee, and, if the panel approved the nomination, an up-or-down vote on the floor.

While the plan would have only applied to future presidents, no Democrat signed on and it didn’t go anywhere. And when Reid invoked the nuclear option to push through most nominees on simple majority votes in 2013, Democrats kept the 60-vote threshold for Supreme Court justices -- a nod to the party’s liberal supporters who want the ability to block conservative nominees.

Back in 2008, McConnell warned Democrats that their obstruction of nominees could come back to haunt them.

“I would hope our Democratic colleagues resist the desire by some to drag us into the judicial confirmation brinkmanship and establish a precedent they will regret,” McConnell said.

Now, McConnell’s the one who may be establishing the precedent.

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