New York Times
By Carl Hulse
February 18, 2016
The long-serving senator professed outrage. How dare the opposition refuse a vote on a high-level presidential judicial nominee.
“Do not continue to treat the third branch of our federal government — the one branch intended to be insulated from political pressures — with such disregard that we filibuster its nominees,” he thundered. “Do not perpetuate this campaign of unfairness. Vote for him or vote against him, but just vote.”
The opposition leader was equally emphatic in his position of denying the president. “History will look kindly on us for doing so because never has a president of the United States been more ideological in his selection of judges,” he declared.
The aggrieved party? Senator Orrin G. Hatch, Republican of Utah. His confident opponent? Senator Chuck Schumer, Democrat of New York.
They were locked in a Senate-shaking battle in 2003 over Miguel Estrada, a former assistant solicitor general who was nominated by President George W. Bush to an appeals court post but could never clear a Democratic filibuster.
Reviewing past statements by lawmakers on judicial nominations reveals how easily they alternate positions based on control of Congress or the White House.
Now the two lawmakers have swapped uniforms.
In the aftermath of Antonin Scalia’s death and the surprise court vacancy, Mr. Hatch, a senior member of the Judiciary Committee and its former chairman, is the one determined not to go forward on a nominee; Mr. Schumer, a longtime central figure in judicial confirmations, is aghast at such disrespect.
The dirty little not-so-secret fact about the Senate is that both sides have engaged in ruthless tactics to deny presidents not of their party the chance to make lifetime appointments to courts where they could influence public policy long after that president is gone. Veteran senators develop remarkable dexterity, capable of seamlessly flipping their stance on filibusters and obstructionism depending on whether they are in the majority or the minority or who is in the White House.
“Each side has tried to take advantage at one point or another of trying to use cloture or not want to bring a nominee up for a hearing,” said Ben Nelson, a onetime centrist Democratic senator from Nebraska. He was a leader of the so-called “Gang of 14” that came together to avert a Senate meltdown when Democrats were blocking Mr. Estrada and other Republican nominees.
“It is not brand new, but it is new to this Congress and probably new to an awful lot of people in the country,” he said.
President Obama on Tuesday made the same point, saying people have paid little notice to the incendiary fights over court picks that have become commonplace in the Senate.
“But this is the Supreme Court, and it’s going to get some attention,” he said. Mr. Obama, looking a little uncomfortable in his tortured explanation of how he came to support a filibuster against Justice Samuel A. Alito Jr., also owned up to the fact that both parties had been guilty of judicial power plays.
“What’s fair to say is that how judicial nominations have evolved over time is not historically the fault of any single party,” he said.
The rapidly escalating fight over the Scalia vacancy is exposing this reality. Capitol Hill might be quiet because of the weeklong Presidents’ Day recess, but top aides are busy digging up what senators from the other party said at various points in the running judicial wars to be ready to throw it back in their faces when they weigh in from the opposite direction on the current fight. At the same time, they are combing the remarks of their own bosses to be just as ready when some long-forgotten attack on the other side comes back to haunt them.
Supreme Court Nominees Considered in Election Years Are Usually Confirmed
Since 1900, the Senate has voted on eight Supreme Court nominees during an election year. Six were confirmed.
“All of these judges are entitled to an up-or-down vote,” Senator Mitch McConnell, the Kentucky Republican and majority leader now resisting action on President Obama’s nominee, said in a 2007 radio interview as he urged Democrats to continue to confirm Bush administration judges in the final years of his term.
“It is a well-established practice that in presidential election years, there comes a point when judicial confirmation hearings are not continued without agreement,” Senator Patrick J. Leahy of Vermont, who has been the chairman and the top Democrat on the Judiciary Committee, said in 2004.
He now wants a hearing and a vote on a nominee.
One particular comment in 2007 by Mr. Schumer is receiving the most attention. During a speech to the American Constitution Society, he said, “Given the track record of this president and the experience of obfuscation at the hearings, with respect to the Supreme Court, at least, I will recommend to my colleagues that we should not confirm a Supreme Court nominee except in extraordinary circumstances.”
Under attack over their handling of the vacancy, Senate Republicans have raised this comment, as Senator John Cornyn of Texas, the No. 2 Republican and a member of the Judiciary Committee, did in a Texas radio interview.
“We’re embracing this precedent that Senator Chuck Schumer advocated for back in 2007, which strikes me if it’s good enough for them when they’re in the majority, then it’s good enough for us when we are,” said Mr. Cornyn, suggesting it was hypocritical for Democrats to now complain.
Mr. Schumer says his remarks are being distorted, and that he was talking about cases in which nominees were out of the mainstream or refused to be forthcoming at hearings. He said he never advocated taking no action.
“Bottom line is very simple,” he said on a conference call with reporters Wednesday. “There should be a hearing and a vote on who the president nominates.”
No doubt the members of each side will continue to remind those on the other of what they said and did in the past. But the real question is who will win the argument today.
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