Poor Democrats. Everybody seems to take their things, whether it is through Russian hacking or James Comey. Now, they are claiming that the Supreme Court seat for which the distinguished jurist Judge Neil Gorsuch has been nominatd was stolen from them. But the Wall Street Journal explains this morning why the myth of the stolen seat is just that–a myth. The Wall Street Journal observes:
The “theft” is supposedly the GOP Senate’s refusal last year to vote on President Obama’s nomination of Merrick Garland to fill Antonin Scalia’s seat. But the standard of not confirming a Supreme Court nominee in the final year of a Presidency was set by . . . Democrats. And by no less a Beltway monument than the current Senate Minority Leader, Chuck Schumer.
“We should not confirm any Bush nominee to the Supreme Court, except in extraordinary circumstances,” Mr. Schumer declared in a July 2007 speech to the American Constitution Society. Democrats then held the Senate and Mr. Schumer was putting down a marker if someone on the High Court retired. George W. Bush didn’t get another opening, but Mr. Schumer surely meant what he said.
The Democratic theft standard goes back further to Joe Biden’s days as chairman of the Senate Judiciary Committee. In June 1992 in President George H.W. Bush’s final year, Robber Joe opined that the President “should consider following the practice of a majority of his predecessors and not name a nominee until after the November election is completed.”
Naming a new Justice, he said, would ensure that a confirmation “process that is already in doubt in the minds of many will become distrusted by all.” If Mr. Bush made an election-year nomination, Mr. Biden said his committee should consider “not scheduling confirmation hearings on the nomination until after the political campaign season is over.”
Does anyone outside the MSNBC audience think that had the roles been reversed in 2016, and a Democratic Senate faced a Republican Court nominee, Harry Reid would have held a confirmation vote? As John McEnroe liked to shout, “You can’t be serious!”
The Democrats may employ the idea that the seat was stolen as the rationale to filibuster the nomination, which would be a shame. It might lead to the abolition of the filibuster for Supreme Court nominations, which would be just one more deviation from Senate tradition (but perhaps essential if this highly-qualified nominee is to be confirmed).
Republicans did not invoke a filibuster against either of former president Barack Obama's choices (Justices Sotomayor and Kagan) and the only time the Senate has come close to filibustering a nominee was in 2006, when former president George W. Bush nominated Justice Alito. it would be an unfortunate departure from tradition and procedure if the GOP had to nuke the filibuster. If, however, the shoe were on the other foot . . .
Losing vice presidential candidate Tim Kaine promised the same last October. “If these guys think they’re going to stonewall the filling of that vacancy or other vacancies,” Mr. Kaine said, a Democratic majority “will change the Senate rules to uphold the law.”