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Democrats Set the Rules on Blocking Judicial Nominations

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.