In the days since the death of Antonin Scalia, there have been a number of arguments made about why the Senate must confirm a new Supreme Court justice. We’ve been told that the failure to do so would be a failure to do their sworn duty. It’s hard to hear such arguments as being meant in anything like good faith.
There was a time when nominations were fairly straightforward. If the nominee was in good standing, intelligent and didn’t have any serious ethical issues, then the Senate would confirm. That changed in 1987, when the word “Bork” became a verb and the Senate decided that the philosophy of the nominee was of prime importance. A few short years later, Sen. Joe Biden warned the first President Bush to not even bother to put forth a nominee if an opening should happen during the political run-up to an election.
During the George W. Bush administration, the Democratic leadership in the Senate brought judicial confirmations to a crawl. The well-qualified appeals-court nominee Miguel Estrada was sidelined in part because he is a Latino and liberal interest groups were afraid that he would be an attractive future Supreme Court nominee. In 2007, more than a year before the presidential election, Sen. Chuck Schumer, D-N.Y., openly said that no more nominees from Bush should be confirmed. This, of course, was after Senate Democrats attempted to filibuster a Supreme Court nominee.
A illustrative hypothetical
In order to swallow the current arguments being made, we are asked to believe that in a hypothetical situation where, say, Justice Ruth Bader Ginsberg had suddenly died in February of 2008, this same group of senators would have allowed a new nominee to be processed and confirmed. Does anyone believe this? Please!
“Well, two wrongs don’t make a right” is now the refrain. This is interesting because most of the people who are saying that won’t actually tell you that the past actions of those Democratic senators were wrong. But tell you what, if those same senators want to stand up and explain why they should not have rejected past nominees because of a difference of philosophy, we should all listen. Otherwise, the most honest presumption is that they simply want the rules to be one way when it favors them, and a different way when it doesn’t.
The key question at hand is simply this: Should a senator vote to confirm a nominee with whom he or she disagrees on matters like abortion, gun rights and free speech? Or should Democratic senators only vote to confirm liberal justices while Republicans only confirm conservatives? Those are the two basic choices. Either the process continues to be political at its heart or we somehow go back to the idea of voting for all qualified nominees. (Please note, if you only think that the other side should bend, then you don’t understand how a democracy is supposed to work.)
How would our senators decide?
What would our Minnesota senators decide? Would Amy Klobuchar and Al Franken go the qualification route or would they keep it political? Under what circumstances would they vote for a nominee put forward by a Republican president? And what would DFL voters say if they confirmed someone like Justices John Roberts or Samuel Alito?
When President Barack Obama, then a senator, spoke about his objections to Alito, he said:
I believe firmly that the Constitution calls for the Senate to advise and consent. I believe that it calls for meaningful advice and consent that includes an examination of a judge’s philosophy, ideology, and record.
Using those same qualifications, we’re stuck in the situation where justices will largely be acceptable or not based on the political make-up of the Senate. We currently have a Republican majority, and that means a more conservative nominee. The chances that Obama will put one forth seems very unlikely.
This seat won’t be filled until after the election. And that would be just as true if the parties in charge of the various branches were reversed.
Peder DeFor, of Minneapolis, writes the blog Peder D4.
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