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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