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The 2016 and 2020 Senate votes are about the same thing: constitutionalist judges

The 2016 and 2020 Senate votes are about the same thing: constitutionalist judges

The claims of hypocrisy against Senate Republicans over Supreme Court votes in 2016 and 2020 are based on a false history of what transpired in 2016. Whether Senate Republicans are being hypocritical or consistent depends on your understanding of the history.

Here’s what happened. Justice Antonin Scalia’s death was publicly announced in the early afternoon of Saturday, February 13, 2016. Scalia’s death was a shock to virtually everyone. There was no expectation of an imminent vacancy, and neither Merrick GarlandMerrick Brian GarlandWhat a Biden administration should look like McConnell and Schumer's relationship shredded after court brawl Bitter fight over Barrett fuels calls to nix filibuster, expand court MORE nor any other nominee was on the radar. 

Within one hour, Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellTop Senate GOP super PAC makes final .6M investment in Michigan Senate race On The Money: McConnell says Congress will take up stimulus package at start of 2021 | Lawmakers see better prospects for COVID deal after election Overnight Health Care: House Dem report blasts Trump coronavirus response | Regeneron halts trial of antibody drug in sickest hospitalized patients | McConnell says Congress will take up stimulus package at start of 2021 MORE (R-Ky.) announced that there would be no Senate hearings on a new justice before the November presidential election. He said, “we’ll let the next president make the selection.” The key to McConnell’s announcement was “next president.” He said that the Senate would take no action on any nominee. McConnell made a bold decision, and by February 23, Senate Republicans had circled the wagons in support.

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Politico captured the moment accurately: “The swiftness of McConnell’s statement — coming about an hour after Scalia’s death in Texas had been confirmed — stunned White House officials who had expected the Kentucky Republican to block their nominee with every tool at his disposal, but didn't imagine the combative GOP leader would issue an instant, categorical rejection of anyone Obama chose to nominate.”

When President Obama nominated Garland more than a month after Scalia’s death on March 16, McConnell reiterated his position: “It is a president's constitutional right to nominate a Supreme Court justice,” he said. “And it is the Senate's constitutional right to act as a check on a president and withhold its consent.”

The constitutional text is clear. Article II, Section 2 of the Constitution gives the president the power to “nominate” and gives the Senate the power to “Advice and Consent.”

McConnell can also point to the most authoritative public opinion poll: elections. As he had noted, “Americans reelected our [Senate] majority in 2016 and expanded it in 2018…,” after Justice Kavanaugh was confirmed.

Senate Democrats have always understood the Senate’s constitutional authority. In 1992, then-Judiciary Committee Chairman Joe BidenJoe BidenBiden leads Trump by 8 points nationally: poll Ivanka Trump raises million in a week for father's campaign On The Money: McConnell says Congress will take up stimulus package at start of 2021 | Lawmakers see better prospects for COVID deal after election MORE gave an impassioned speech on the Senate floor “defending the Senate's right to block a nominee amid a heated presidential election.” Biden said: “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 [George H.W.] 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.”

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In a speech to the liberal American Constitution Society in July 2007, Sen. Chuck SchumerChuck SchumerReestablishing American prosperity by investing in the 'Badger Belt' House Democrats introduce bill to invest 0 billion in STEM research and education Graham dismisses criticism from Fox Business's Lou Dobbs MORE’s (D-N.Y.) position was “that we should not confirm any Bush nominee to the Supreme Court except in extraordinary circumstances.” That was 18 months before the end of President Bush’s term.

As Justice Ruth Bader GinsburgRuth Bader GinsburgThe truth, the whole truth about protecting preexisting conditions McConnell plans to fill two key circuit court seats even if Trump loses GOP faces fundraising reckoning as Democrats rake in cash MORE observed five years before she was nominated to the court, this is an arrangement of “shared power.” The Senate’s power is a “check” upon the president, as Alexander Hamilton explained it in Federalist #76.

Senate precedent also backs up McConnell. There are numerous instances where the Senate has rejected presidential nominees to the Supreme Court. Approximately 31 of 160 Supreme Court nominees have been rejected. A few illustrative examples:

  • George Washington’s nomination of John Rutledge in 1795 to be chief justice was defeated within days of formal filing, without hearings, because of political opposition to Rutledge.
  • James Madison’s nomination of Alexander Wolcott in February 1810 was rejected within days, without a hearing, because of political opposition to Wolcott. 
  • When John Quincy Adams nominated John J. Crittenden in December 1828, the Senate postponed the nomination indefinitely by resolution in February 1829. 
  • At Andrew Jackson’s first nomination of Roger Taney to the Supreme Court, the Senate passed a resolution in March 1835 “to postpone the nomination indefinitely.” After an election and the makeup of the Senate changed, Taney was re-nominated and confirmed.

The Senate has rejected Supreme Court nominees for any number of reasons. Senate Republicans didn’t “mistreat” Judge Merrick Garland. It was all about President Obama and his “empathy” standard for judges. 

The consistency between 2016 and now is the constitutionalist standard for Supreme Court justices. It has been their strong suit.  Why won’t Republicans explain that simple, principled position now?

Clarke D. Forsythe is senior counsel at Americans United for Life and the author of “Abuse of Discretion: The Inside Story of Roe v. Wade” (Encounter Books 2013).