I don’t envy Republicans. They are oft times, “damned if they do, damned if they don’t.” Take for example the predicament they are currently facing with President Obama’s Supreme Court nomination of Judge Merrick Garland. The absolute disgust and displeasure that many Republicans, particularly conservatives, have for the party couldn’t be made any more obvious than what’s being played out in the current Republican primary. Republicans by the millions are fed up by their collective perception that the Republican Party has done little to nothing at all to stop President Obama. Cited most often is that voters gave the party a majority in the House and in the Senate to specifically overturn The Affordable Health Care for America Act, or Obamacare as it is more commonly known as, and to block President Obama’s judicial
nominees. At this point in time, many Republicans feel that the party has failed, and failed miserably in this task. So shouldn’t the choice seem obvious? Shouldn’t they simply refuse to vote on Judge Garland?
Let’s try and analyse this as the American public might. So, what does the Constitution says regarding Supreme Court Judge nominations?
Section 2 of Article II says the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme Court.”
President Obama is the President, and the Constitution gives him the right to nominate a judge to sit on The Supreme Court. That is what he has done, so, he has done his portion of the process. The Constitution also says that the Senate has the right to give “advice” and must “consent”. Alright, fair enough. So President Obama has done his job, shouldn’t the Republican Senate hold a hearing? Aren’t they failing to do their job? That sounds fair, right? Well, it goes a little deeper than that. Let’s start by looking at what some Democrats have said regarding the situation when the roles were reversed. That is to say, when a Republican President, in his last year of office, wanted to pick an additional Supreme Court Judge:
In 2007 Senator Schumer (D-NY) stated:
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. Given the track record of this President and the experience of obfuscation at the hearings, with respect to the Supreme Court, at least: I will recommend to my colleagues that we should not confirm a Supreme Court nominee EXCEPT in extraordinary circumstances.
In 2005 current Senate Minority Leader Senator Reid (D-NV) stated:
“The duties of the United States Senate are set forth in the Constitution of the United States. Nowhere in that document does it say the Senate has a duty to give presidential nominees a vote. It says appointments shall be made with the advice and consent of the Senate. That’s very different than saying every nominee receives a vote.”
In 2004 Senator Senator Patrick Leahy (D-VT) stated:
July: “At this point in a presidential election year, in accordance with the Thurmond Rule, only consensus nominees being taken up with the approval of the majority and minority leaders and the chairman and ranking members of the Judiciary Committee should be considered.”
November: “Whether [Republicans] acknowledge it as the Thurmond Rule or something else, it is a well-established practice that in presidential election years, there comes a point when judicial confirmation hearings are not continued without agreement.”
In the following video he mentions again the Thurmond Rule, pointing out that the Republican Senator Strom Thurmond put into place a rule that without consent of both parties, no judges would go through a hearing, and then sarcastically said he wanted to be “bipartisan” and use the Republican rule:
In 1992 Vice President Biden, then Sen Biden made his opinion clear, stating:
“As a result, it is my view that if a Supreme Court Justice resigns tomorrow, or within the next several weeks, or resigns at the end of the summer, President Bush should consider following the practice of a majority of his predecessors and not–and not–name a nominee until after the November election is completed.
The Senate, too, Mr. President, must consider how it would respond to a Supreme Court vacancy that would occur in the full throes of an election year. It is my view that if the President goes the way of Presidents Fillmore and Johnson and presses an election-year nomination, the Senate Judiciary Committee should seriously consider not scheduling confirmation hearings on the nomination until after the political campaign season is over.”
Not surprisingly, Sen Schumer doesn’t think the circumstances are the same, and Vice President Biden in a statement, said his comments in 1992 had been misinterpreted. Of course they did. Is anyone surprised?
Alright, so we have seen what Democratic senators have said when in the exact same situation the Republicans are in now, but is it illegal for Republicans to not hold a hearing on Judge Garland? No, it’s not. It wasn’t illegal when the aforementioned Democratic senators made their statements, it is not illegal now either. The U.S. Senate has the constitutional right to hold no hearings and no votes on President Obama’s nominee. In short, it’s up to the Senate.
But the Republicans hold a majority in the Senate, do they not? The current breakdown of the 114th Congress (2015-2017) regarding the Senate is as follows:
Majority Party: Republican holding 54 seats
Minority Party: Democrat holding 44 seats
Other Parties: 2 Independents (both caucus with the Democrats)
Total Seats: 100
So, yes, Republicans have a majority in the Senate. But just because a party holds a majority in the Senate, does not mean they can successfully block a nominee. Clarence Thomas, nominated in 1991 By President Bush for example, was confirmed when Democrats had 55 seats and Republicans had 45 seats. Eleven Democrats swung their votes and sided with Republicans. In fact, 13 Supreme Court nominations since 1945 have been approved by an opposing party in the Senate. So just because a party has a majority in the Senate, DOES NOT mean they will always block a nominee.
The Supreme Court, with arguably the most conservative judge in the last fifty years, still decided in favor of liberals on the following issues:
- Same-sex marriage
- Health care or housing discrimination
- Tossed out a Los Angeles ordinance giving police the right to inspect hotel guest registries
Those are but a sampling of the cases. All told, SCOTUSblog publisher and lawyer Thomas Goldstein counted 26 cases this term with close votes where ideology played a seemingly important role. The liberal justices prevailed in 19 of them. On his list of the 10 most significant cases, the liberals were in the majority in eight. And in none of the cases did a liberal justice cross over to vote with conservatives. So, even with one of the most brilliant conservative judges to ever sit on the bench, liberals prevailed in 19 out of 26 cases. That is a WHOPPING 73%!
So, considering the following:
- Democrats have, in the past, failed to hold a hearing on Republican President’s Supreme Court nominees
- Having a majority in the Senate IS NOT a guarantee that the minority party’s nominee will be voted down
- It is not illegal for the Senate to choose not to hold a hearing on a President’s judical nominee in an election year
- With a staunch conservative on the court, liberals still won 73% of the cases decided
I do not think the Republican Senate should hold a confirmation hearing on Judge Garland. Will the media and Democrats spin this and paint Republicans to look like obstructionists? Of course they will. Will the media and Democrats scream, complain, and accuse Republicans of not doing their jobs? You can bet it on! Does it matter? Nope. Because simply put, the stakes are too high. If Judge Antonin Scalia, God rest his soul, is replaced with anyone who is not as conservative as he was, the court will be tipped irrevocably to the left, and that will be disastrous for this country. That’s my opinion, but hey, I’m just a cop.by