News & Politics

Democrats Set the Rules on Blocking Judicial Nominations

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With the untimely death of Antonin Scalia Saturday, President Barack Obama has been handed the opportunity of a lifetime to tilt the Supreme Court to the left for decades to come. It’s also given Democrats an issue to demagogue from now until election day and beyond.

About an hour after Scalia’s death was confirmed, Senate Majority Leader Mitch McConnell “threw down the gauntlet,” announcing that the Senate would not be confirming a replacement for him until after the 2016 election, a move Politico called, “an historic rebuke of President Obama’s authority and an extraordinary challenge to the practice of considering each nominee on his or her individual merits.” But there is nothing “historic” or “extraordinary” about challenging “the practice of considering each nominee on his or her individual merits.” Democrats have been blocking judicial nominees based on ideological grounds rather than their “individual merits” for decades now.

Regardless, the president wasted no time in lecturing the Senate about its “responsibility” to give his nominee “a fair hearing and a timely vote.”

“These are responsibilities that I take seriously, as should everyone,” Obama intoned. “They’re bigger than any one party. They are about our democracy. They’re about the institution to which Justice Scalia dedicated his professional life, and making sure it continues to function as the beacon of justice that our Founders envisioned.”

Hillary Clinton issued her own statement in support of Obama on Saturday evening.

“Let me just make one point,” Clinton said, whipping up the crowd at the state Democratic Party event. “Barack Obama is president of the United States until Jan. 20, 2017. That is a fact, my friends, whether the Republicans like it or not.”

In a long departure from her stump speech, Clinton attached the new Supreme Court vacancy to her argument about Democrats needing to get serious about winning in November.

“Just look at the Supreme Court. I know that our thoughts and prayers are with the Scalia family tonight, and I’m also thinking and praying for the future of our country,” Clinton said. “It is outrageous that Republicans in the Senate and on the campaign trail have already pledged to block any replacement that President Obama nominates.”

Either Hillary Clinton and Barack Obama have short memories or they’re raging hypocrites because both have participated in Democrat filibusters of President Bush’s nominees to high courts on nothing but ideological grounds. In 2003, Democrats invented the filibuster of judicial nominees in order to defeat many of President Bush’s conservative nominees to the federal circuit courts.

The filibuster strategy developed out of the Democrats’ concern for the fact that Republicans commanded a majority in the Senate and were in a position to approve all the president’s appellate-level judicial nominees. As a result of the new filibuster tactic employed by the Democrats, President Bush has had the lowest confirmation rate for such appointments in the history of the U. S.

The Obama era principle, “elections have consequences,” was not yet operational, so highly respected and accomplished judicial nominees like Priscilla Owen and Janice Rogers Brown were filibustered by Senate Democrats, including Hillary Rodham Clinton. Democrats began filibustering an unprecedented number of President Bush’s judicial nominees to the federal circuit courts of appeals in 2003.

The net effect was that those nominees blocked by filibusters never received the up-or-down vote provided for in the U. S. Constitution’s advice and consent clause, Article II, Section 2. Due to the Democrats’ sleight of hand filibuster tactic, despite having majority support the filibustered nominees never received any vote at all on their nominations.

President George W. Bush tapped Miguel Estrada to be a nominee for the U.S. Court of Appeals for the District of Columbia in May of 2001, but Senate Democrats used the filibuster to block his approval. Estrada, a Honduran immigrant, had argued 15 cases before the U.S. Supreme Court and unanimously received the American Bar Association’s rating of “well-qualified” – the highest rating possible. Democrats objected to the highly qualified conservative jurist for purely ideological reasons. He would have been the first Hispanic to sit on that court, which is seen as a steppingstone to the U.S. Supreme Court. Faced with two years of Democratic obstruction, Mr. Estrada finally withdrew from consideration in September of 2003.

In light of this recent history, the only thing that is  “outrageous” about the way McConnell is handling the Supreme Court vacancy, is Clinton’s gross hypocrisy on the matter.

In 2006, then-Senator Obama joined a filibuster to delay the confirmation of Judge Samuel Alito, one of President Bush’s nominees to the Supreme Court. This is what the junior senator from Illinois said at the time about the Senate’s role in confirming nominees.

“I will be supporting the filibuster because I think Judge Alito, in fact, is somebody who is contrary to core American values, not just liberal values,” Obama said in January 2006. “When you look at his decisions – in particular, during times of war – we need a court that is independent and is going to provide some check on the executive branch,” said Obama.

Of course, Obama meant to say “some check on a Republican executive branch.”

In his floor statement on the confirmation of Justice Alito, Obama said:

“There are some who believe that the President, having won the election, should have the complete authority to appoint his nominee, and the Senate should only examine whether or not the Justice is intellectually capable and an all-around nice guy. That once you get beyond intellect and personal character, there should be no further question whether the judge should be confirmed.

I disagree with this view. I believe firmly that the Constitution calls for the Senate to advise and consent. I believe that it calls for meaningful advice and consent that includes an examination of a judge’s philosophy, ideology, and record. And when I examine the philosophy, ideology, and record of Samuel Alito, I’m deeply troubled.

I have no doubt that Judge Alito has the training and qualifications necessary to serve. He’s an intelligent man and an accomplished jurist. And there’s no indication he’s not a man of great character.”

So Obama openly admitted at the time that his main objection to the eminently qualified Alito was based on ideology.  Ten years later, he would be touchingly dedicated to honoring the Supreme Court “beacon of justice” with “fair hearings and “timely votes” no doubt so each nominee can be considered based on his or her individual merits.

Too bad. The precedent for the GOP to delay and obstruct and filibuster judicial nominees on ideological grounds was set by Democrats. And it needs to be embraced by Republicans, right now, more than ever before.