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The ‘Schumer standard’ would be an improvement

In the debate around the Supreme Court vacancy, a lot of rhetoric simply doesn’t hold up.

For example, Republicans argue that Supreme Court nominees should not be confirmed in a presidential election year—when in fact, since 1900, six Justices have been confirmed in presidential election years.

Or they assert that Democrats are “robbing” voters of a chance to replace Justice Scalia—when voters made their voices clear by decisively re-electing President Obama. If anyone has been robbing voters of their representation, it has been Republicans, through their historic obstruction since 2009.

The latest Republican talking point invokes a so-called “Schumer standard” because in 2007, Sen. Schumer (D-N.Y.) said his colleagues “should not confirm a Supreme Court nominee except in extraordinary circumstances.” Republicans contend that it would be hypocritical for Democrats to not follow this argument today because it was articulated in year seven of President George W. Bush’s presidency and we are now in year eight of President Obama’s term.

But the real hypocrisy is that Republicans try to embrace this standard at all. Given their dramatic escalation in filibustering, if they followed the “Schumer standard,” it actually would be an improvement. 

Schumer clearly explained what “extraordinary circumstances” would lead to confirmation: “[The nominees] must prove by actions—not words—that they are in the mainstream, rather than the Senate proving that they are not.” His argument is explicitly tied to the specific nominee. While he happened to say it in 2007, I imagine he would insist on a nominee in the mainstream in year one of a president’s term as well as year seven or eight. And he makes clear that the nominee should have the opportunity to prove he or she is in the mainstream.

Today, Senate Republicans are not opposing a specific nominee. They oppose a Supreme Court that might uphold or reinstate long-standing precedent they disagree with, so they plan to block any nominee—even if he or she is well-qualified and in the mainstream.

Republicans have used the filibuster to undermine entire institutions before:

They opposed a Consumer Financial Protection Bureau (CFPB) that could robustly protect American consumers, so they filibustered the president’s nomination of Richard Cordray to serve as its director, regardless of his qualifications.

They opposed a Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) that could vigorously enforce federal firearms laws, so they filibustered the president’s nomination of Todd Jones to be its director, despite his considerable record.

They opposed a National Labor Relations Board that could safeguard employees’ rights to organize and prevent unfair labor practices, so they filibustered the president’s nominees to serve on that board.

For a party that wants government so small they can “drown it in a bathtub,” perhaps these filibusters of government institutions were not surprising.

But the American people will not allow Senate Republicans to flush the Supreme Court down the drain.

Just as we demanded that the Senate do its job before—which eventually led to the confirmations of Cordray and Jones and a functioning NLRB—we demand that the Senate do its job today.

As Senate Republicans invoke the “Schumer standard,” they must understand what they are embracing: they would be shifting from their egregious filibusters of institutions and returning to consideration of an individual based on his or her merits.

I have every confidence that the president’s Supreme Court nominee will be able to prove that he or she is in the mainstream—passing the “Schumer standard” with ease—and therefore expect Senate Republicans to follow through by allowing an up-or-down vote and confirmation.

Kang is a former deputy counsel to President Obama and current national director of the National Council of Asian Pacific Americans.


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