Democrats Pledge Supreme Court Obstruction

• Democratic leader Schumer has already promised to try to block President-elect Trump’s Supreme Court nominee.
• This obstruction would do a disservice to the American people and the Senate.
• Senate Democrats should follow Republicans’ example and afford a full and fair process to the Supreme Court nominees of a new president. 

Senator Schumer Speaks for the Democrats Now

Earlier this week, when appearing on Rachel Maddow’s TV show, Democratic leader Chuck Schumer said that he “absolutely” would work hard to block anyone President-elect Donald Trump nominates to the U.S. Supreme Court.

“We are not going to make it easy for them to pick a Supreme Court justice.”– Sen. Chuck Schumer, 1-3-2017

Senator Schumer’s position on the proper role of the Senate in confirming judicial nominees apparently depends solely on the party of the president doing the nominating. He has practically admitted this in the past, stating in 2007 that if a Republican were elected president the next year, the Senate “should reverse the presumption of confirmation.” At that time, with 18 months remaining in George W. Bush’s term, Senator Schumer said that he would recommend that his colleagues “not confirm a Supreme Court nominee except in extraordinary circumstances” for the remainder of President Bush’s term. When President Obama made his picks for the Supreme Court, it was a different story. After Justice Sonia Sotomayor was nominated to the court, Senator Schumer said that Republicans would “have to have a pretty strong reason” to vote against her. Even after she was confirmed, he falsely asserted that “no one questioned that she was out of the mainstream.”

So it is no surprise that with an incoming Republican president, Senator Schumer pledges not to “settle on a Supreme Court nominee,” even before the nomination is made.

Democrats Should Not Engage in PARTISAN Obstruction

After Justice Antonin Scalia died, Senate Republicans followed the Senate precedent of the “Biden rule.” This unwritten rule was explained by then-Senator Joe Biden as requiring that “once the political season is under way ... action on a Supreme Court nomination must be put off until after the election campaign is over.” By following the Biden rule, Senate Republicans gave to the next president, “rather than a lame-duck president whose priorities and policies they just rejected in the [2014] national election,” the opportunity to pick the next Supreme Court justice.

A letter by the Republican members of the Senate Judiciary Committee noted that, by not holding hearings until the next president was sworn in, the committee would “ensure the American people are not deprived of the opportunity to engage in a full and robust debate over the type of jurist they wish to decide some of the most critical issues of our time.” This ability to appoint Justice Scalia’s replacement would have been available to the next president regardless of political party. Majority Leader Mitch McConnell made it clear throughout last year that the new president would get to nominate Justice Scalia’s successor, even when many people expected a different outcome in the election. 

Senate Democrats Must Allow a Full and Fair Process

The circumstances underlying the Biden rule obviously do not apply to the Supreme Court nominees of a new president. President Obama was not far into his first term when he nominated his first Supreme Court justice in May 2009 and his second in May 2010. Republicans treated both of these nominees fairly. This included affording both nominees the courtesy of an up or down vote. Senate Democrats should follow the example of the Republican minority early in President Obama’s term.

Although plenty of Republicans chose not to vote for President Obama’s liberal nominees – and strongly disagreed with the judicial philosophies of those nominees – they did not attempt to block the appointments with filibusters. Senate Democrats owe the American people an open mind and fair process for the new president’s nominee, rather than promising obstruction before that nomination is even made.