WASHINGTON — Declaring that the retirement of Justice Anthony Kennedy leaves “the most important Supreme Court vacancy for this country in at least a generation,” Senate Minority Leader Chuck Schumer (D-N.Y.) on the Senate floor today called on Americans to “make it clear that they will not tolerate a nominee chosen from President Trump’s pre-ordained list, selected by powerful special interests, who will reverse the progress we have made over the decades.”
Kennedy, 81, was nominated to the Supreme Court by President Reagan. He’s been a pivotal swing vote in favor of gay rights, including the Obergefell v. Hodges decision that legalized same-sex marriage across the country three years ago.
“Nothing less than the fate of our health care system, reproductive rights for women, and countless other protections for middle-class Americans are at stake,” Schumer said. “…The Senate should reject anyone who will instinctively side with powerful special interests over the interests of average Americans.”
In March 2016, Senate Majority Leader Mitch McConnell (R-Ky.) began stalling the nomination of Merrick Garland to fill the vacancy left by the death of Justice Antonin Scalia. McConnell cited the “Biden rule,” referring to a June 1992 floor speech by former Sen. Joe Biden (D-Del.) in which the future VP said hypothetically — as there was no Supreme Court vacancy at the time — that the Senate should delay consideration of Supreme Court nominations until after Election Day.
“Where the nation should be treated to a consideration of constitutional philosophy, all it will get in such circumstances is a partisan bickering and political posturing from both parties and from both ends of Pennsylvania Avenue,” Biden said then. “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.”
On Tuesday, after the Supreme Court ruled in favor of the administration’s right to impose a travel ban on residents of several Muslim-majority nations, McConnell wordlessly tweeted a photo of himself and Neil Gorsuch — the justice who was elevated to the high court because of McConnell’s election-season maneuver.
Schumer said today it’s a good time to follow that rule now.
“Senator McConnell would tell anyone who listened that the Senate had the right to advise and consent, and that was every bit as important as the president’s right to nominate,” he said. “Millions of people are just months away from determining the senators who should vote to confirm or reject the president’s nominee, and their voices deserve to be heard now, as Leader McConnell thought they deserved to be heard then. Anything but that would be the absolute height of hypocrisy.”
“People from all across America should realize that their rights and opportunities are threatened,” Schumer added. “Americans should make their voices heard loudly, clearly, and consistently.”
McConnell said on the floor that “the Senate stands ready to fulfill its constitutional role by offering advice and consent on President Trump’s nominee to fill this vacancy.”
“We will vote to confirm Justice Kennedy’s successor this fall. As in the case of Justice Gorsuch, Senators will have the opportunity to meet with President Trump’s nominee, examine his or her qualifications, and debate the nomination,” he said. “I have every confidence in Chairman Grassley’s conduct of the upcoming confirmation process in the Judiciary Committee. It is imperative that the president’s nominee be considered fairly and not be subjected to personal attacks. Thus far, President Trump’s judicial nominations have reflected a keen understanding of the vital role that judges play in our constitutional order.”
“Judges must interpret the law fairly and apply it even-handedly. Judicial decisions must not flow from judges’ personal philosophies or preferences, but from the honest assessment of the words and actual meaning of the law.”
McConnell declared that “we will look forward to yet another outstanding selection.”
“But today, the Senate and the nation thank Justice Kennedy for his years of service on the bench, and for his many contributions to jurisprudence and to our nation,” he said.