The Democrats’ Never-Ending Supreme Court Hypocrisy By David Harsanyi
https://www.nationalreview.com/2022/02/the-democrats-never-ending-supreme-court
Democrats keep escalating the judicial nomination battles and then demand that the other side unilaterally disarm.
Yesterday, the chairman of the Senate Judiciary Committee, Dick Durbin, told CNN’s State of the Union that he has “reached out to many Republicans, asking them to keep an open mind and to meet with Ketanji Brown Jackson, ask the hard questions, ask for materials — we’ll provide them. It’s in the best interest . . . of the U.S. Senate for this to be bipartisan.”
Is it? In October 2020, Durbin announced that he would be a “no” on Amy Coney Barrett before asking her a single “hard question” or requesting any “materials,” as did a bunch of other Democrats. Did Durbin have an open mind on Barrett? Or Brett Kavanaugh? Then–minority leader Chuck Schumer, as well as members of the Judiciary Committee such as Richard Blumenthal and Mazie Hirono — who not only spread fake rape allegations about Kavanaugh but argued that the nominee didn’t deserve the presumption of innocence — refused to even meet with Barrett. Schumer claimed that the Barrett nomination would “go down as one of the darkest days in the 231-year history of the United States Senate.” Was that in the best interest of a bipartisan Senate?
When it comes to Supreme Court nominations, Democrats are under the impression that they have the right to dictate the terms of hearings, and nominees always conveniently aligning with their political aims, whether they win or lose elections.
Amy Coney Barrett wasn’t susceptible to the kind of insidious personal attacks the media and Democrats launched against Brett Kavanaugh — though a number of Democrats toyed with religious tests — so Schumer’s excuse for refusing to meet her primarily rested on the notion that the nomination was “illegitimate.” Candidate Joe Biden, and virtually every Democrat, said the process was “illegitimate.” House speaker Nancy Pelosi called Barrett, who was nominated to replace the late Ruth Bader Ginsburg less than two months before the 2020 election, “an illegitimate Supreme Court justice.” The reasons they gave for making this claim were wholly political.
Trump was the duly elected president, despite a four-year concerted effort to delegitimize the results of the 2016 election, and he nominated Barrett using the same process every president in history had (other than those who relied on recess appointments). And the Senate, a branch independent of the president, confirmed her in the same constitutionally prescribed manner that every justice in history had been confirmed. There was nothing illegitimate about it.
This isn’t a tu quoque argument, mind you. Senators have no constitutional obligation to meet with the nominee. Just as Mitch McConnell had no constitutional obligation to give Merrick Garland a vote in the Senate in 2015. As I wrote at the time, “the Biden rule,” which Republicans dusted off to use as their clever rationalization in denying Garland a vote, was nothing but an arbitrary invention of a Delaware senator, meant to preemptively delegitimize any Supreme Court nomination by George Bush I in 1992.
Then again, the “Biden rule” — which states that if the presidency and Senate are controlled by two different parties, any new confirmation should be delayed until after the next election rather than create widespread rancor and undermine the process — didn’t apply to Barrett, anyway. So Democrats came up with the “Schumer rule,” which, broadly speaking, maintains that any Republican nominee to the Supreme Court is “illegitimate” by his or her mere existence, while the Democrats’ nominee deserves a respectful hearing and a yea vote for the same reason.
What McConnell should have pointed out is that Barack Obama had already appointed two Constitution-busting justices to the Court, and Republicans had a duty to do everything within their legal power to stop him from doing it again. No one, as far as I can recall, said Garland was an illegitimate pick. No one dug up his video-rental history. No one leaked the story of a discredited witness to smear him. No one concocted accusations of sexual assault to destroy his reputation.
By the time Biden invented his rule, he’d already helped turn Senate Judiciary Committee hearings into nasty, hyper-politicized, disgraceful show trials that set the precedent for the Brett Kavanaugh hearings. Before Biden, Supreme Court confirmation battles were nearly unheard of. In 1986, the year before Biden became chairman of the Senate Judiciary Committee, Antonin Scalia was confirmed 98–0 by the Senate. A year later, Robert Bork — whom Warren Burger had called the most qualified jurist he’d seen in 50 years — was smeared out of a job. A few years later, Clarence Thomas, who Biden personally promised would be treated with respect, was subjected to what Thomas called, not without good reason, a “high-tech lynching.” Republicans owe Biden nothing.
In 2003, Democrats killed the nomination of Miguel Estrada, a Honduran immigrant. It was the first time in history that a filibuster was used to stop an appeals-court nomination. Democrats opposed Estrada because he was a talented Hispanic appointee with tremendous potential. We know this because in leaked memos from Dick Durbin’s office, they identify Estrada “as especially dangerous, because he has a minimal paper trail, he is Latino, and the White House seems to be grooming him for a Supreme Court appointment.” By 2013, Harry Reid, with the help of Durbin, would kill the judicial filibuster when it suited their purposes. Democrats keep escalating the judicial-nomination battles and then demand that the other side unilaterally disarm.
There is no duty to “bipartisanship” when it comes to nominations, only an adherence to the process. The Senate is a political body. The nomination process is a political one. Republicans should give Jackson a respectful, fair hearing, not because Durbin demands it, but because it’s the decent republican thing to do — and then vote against her, as she will almost surely be another justice who undermines the rule of law.
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