Breaking Judicial Norms: A History A Democratic Senate pattern, from Bork to the filibuster rule.
https://www.wsj.com/articles/breaking-judicial-norms-a-history-11600639835?mod=opinion_lead_pos1
Senate Minority Leader Chuck Schumer is widely reported to have told his Democratic colleagues on Saturday that “nothing is off the table for next year” if Republicans confirm a Supreme Court nominee in this Congress. He means this as a threat that Democrats will break the filibuster and pack the Court with more Justices in 2021 if they take control of the Senate in November’s election.
So what else is new? Democrats have a long history of breaking procedural norms on judges. While packing the Court would be their most radical decision to date, it would fit their escalating pattern. Let’s review the modern historical lowlights to see which party has really been the political norm-breaker:
• The Bork assault. When Ronald Reagan selected Robert Bork in 1987, the judge was among the most qualified ever nominated. No less than Joe Biden had previously said he might have to vote to confirm him. Then Ted Kennedy issued his demagogic assault from the Senate floor, complete with lies about women “forced into back-alley abortions” and blacks who would have to “sit at segregated lunch counters.” Democrats and the press then unleashed an unprecedented political assault.
Previous nominees who had failed in the Senate were suspected of corruption (Abe Fortas) or thought unqualified (Harrold Carswell). Bork was defeated because of distortions about his jurisprudence. This began the modern era of hyper-politicized judicial nominations, though for the Supreme Court it has largely been a one-way partisan street.
No Democratic nominee has been borked, to use the name that became a verb. Even Justice Sonia Sotomayor, whose left-wing legal views were obvious upon her nomination, received a respectful GOP hearing and was confirmed 68-31 with nine GOP votes. Justice Ruth Bader Ginsburg was confirmed 96-3, Stephen Breyer 87-9, and Elena Kagan 63-37.
Democrats, meanwhile, have escalated to character assassination. Clarence Thomas was unfairly smeared on the eve of a Senate vote and barely confirmed. Democrats accused Samuel Alito of racism and sexism for belonging decades earlier to an obscure Princeton alumni group.
Democrats promoted the uncorroborated claims of women accusers against Brett Kavanaugh from his high school and college years. Sen. Sheldon Whitehouse undertook a deep dive into Justice Kavanaugh’s high-school yearbook. This treatment has become the real Democratic Party “norm.”
• Filibustering appellate nominees. It’s mostly forgotten now, but in George W. Bush’s first term Senate Democrats pioneered the use of the filibuster to block nominees to the circuit courts. That was also unprecedented.
Miguel Estrada was left hanging for 28 months before he withdrew, though he had support from 55 Senators. A 2001 Judiciary Committee memo to Sen. Dick Durbin was candid in urging opposition to Mr. Estrada because “he is Latino” and couldn’t be allowed to reach the D.C. Circuit Court of Appeals lest he later become a candidate for the Supreme Court.
Democrats also filibustered or otherwise blocked appellate nominees Priscilla Owen, Janice Rogers Brown, Charles Pickering Sr., Henry Saad, Carolyn Kuhl, William Pryor, David McKeague, Richard Griffin and William Myers, among others.
This violation of norms was stopped only after the GOP regained the majority and threatened to change Senate rules. A handful of Senators in both parties then negotiated a deal to vote for nominees except in “extraordinary circumstances.” Republicans did not unilaterally break the filibuster for judicial nominees.
• Breaking the filibuster for appellate nominees. That norm-breaker was executed by Democrats in 2013, led by then Majority Leader Harry Reid with the enthusiastic support of Barack Obama. Democrats rewrote Senate rules in mid-Congress, on a party-line vote, to add three seats to the D.C. Circuit. The goal was to stack that court with liberals who would rubber stamp Mr. Obama’s “pen” and “phone” regulatory diktats.
Those liberals have done that numerous times, while sometimes blocking President Trump’s deregulatory rule-makings. But the political cost has been high, as we warned at the time. Harry Reid’s precedent allowed GOP leader Mitch McConnell to do the same when Democrats tried to filibuster Neil Gorsuch. The GOP majority can now confirm Mr. Trump’s next nominee with 51 votes.
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Urged on by the progressive media, Democrats are now vowing that they’ll break the 60-vote legislative filibuster rule to add two, or even four, new Justices to the Supreme Court next year for a total of 11 or 13. But they have already been saying this for months. Barack Obama gave the green light when he used John Lewis’s funeral to call the filibuster a “Jim Crow relic.” Never mind that as a Senator he endorsed a filibuster of Mr. Alito. Mr. Whitehouse and four colleagues explicitly threatened in an amicus brief that the Court would be “restructured” if Justices rule the wrong way.
Republicans could surrender and not confirm a nominee, and Senate Democrats would still break the filibuster. Court packing would then become a sword hanging over the Justices if they rule contrary to the policy views of the Senate left. Leader Schumer won’t resist because he is quaking at the prospect of a primary challenge from Rep. Alexandria Ocasio-Cortez in 2022.
Contrast this Democratic record, and now this court-packing threat, with the GOP record. In 2016 Mitch McConnell and his colleagues refused to confirm Merrick Garland and said the voters should decide the issue in the election. Mr. Schumer had previously vowed the same standard in the final years of George W. Bush. Mr. McConnell essentially made a political bet by putting judicial philosophy and the Supreme Court at the center of the 2016 campaign.
Judges were also on the Senate ballot in 2018 after the Kavanaugh ugliness. The GOP gained two net seats. The use of their elected Senate power now to confirm a nominee would be a wholly legitimate use of their constitutional authority. They should not be cowed by Democratic threats from confirming a nominee. Democrats have shown they will do what they want with Senate power no matter what Republicans do now.
What Republicans should do is let the voters know about the Democratic filibuster and court-packing plans, and make them a campaign issue. Democratic Senators and candidates should have to declare themselves not merely on Mr. Trump’s nominee but on the filibuster and court-packing that Mr. Schumer has now told the country will be on the table.
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