Fenati: Hullabaloo, Feelings, and Precedent, Oh My (The Supreme Court Drama)

By Patricia Fenati Of Montgomery County, Maryland.

Thoughts on the Supreme Court.

There has been a lot of “hullabaloo” on the appointment of a Supreme Court Justice in the year of the election of the president. The Democrats are saying that a new justice should not be appointed until after the next inauguration… this is not what they said in 2016.

It is interesting to note that, at least in recent history, it is only Republican nominees who have gone through hell during the nomination process (e.g., Robert Bork, Clarence Thomas, and Brett Kavanaugh, among others).

Thomas Jipping, Senior Legal Fellow and Deputy Director of the Edwin Meese Center for Legal and Judicial Studies, on Direct Line (sound starts at 13:00)

According to Thomas Jipping, Senior Legal Fellow and Deputy Director of the Edwin Meese Center for Legal and Judicial Studies, that is because Republicans believe that justices should only look at the law and not consider their personal beliefs and preferences when deciding cases.

Since Democrats believe that Supreme Court decisions are made on feelings of the Justices, they are much more critical of the personal background of the nominees.

Actually, for 127 years after the Constitution was ratified, the Senate did not hold public confirmation hearings for Supreme Court nominees. Senators looked at the nominees themselves and simply voted “yea” or “nay.” There was no “hullabaloo” at hearings because there were no hearings.

Today’s familiar image of a President’s Supreme Court nominee sitting before the Senate Judiciary Committee to be grilled about his or her views did not begin until President Woodrow Wilson nominated Louis Brandeis to the Supreme Court in 1916, just over a hundred years ago; the Senate held public hearings for the first time that year.

In 2016, before President Obama nominated a Justice, the Republican Senators sent a letter to Senator Mitch McConnell saying they would not vote for a Supreme Court nominee before a new president was sworn in. The election was certain to give a new president and we must remember, at that time, many thought it likely that Hillary Clinton would win. 

Some Key Items To Consider

Two important circumstances were in play in 2016:

  1. Divided Senate and Presidency.
  2. The current president would not be in office after the election.

Previously in U.S. history when the above circumstances occurred, only 2 out of 9 times was a new Supreme Court judge appointed. The similarity of the 2020 situation to 2016 is only surface similarity.

In 2020, the circumstances are the exact opposite of what they were in 2016:

  1. No divided government; the President and Senate are the same party.
  2.  The incumbent president may continue into a second term if re-elected.
Historically in 17 out of 19 times when same party was in the White House and Senate, a new judge was appointed to the Supreme Court in the year of election.

Interesting how four years can completely change a person’s views. Below are quotes from Democrats in 2016 (my comments below the quotes are in italics):

“The American people deserve a fully staffed Court of nine.”

Vice President Joe Biden, 2016

“The president nominates and then the Senate advises and consents, or not, but they go forward with the process.”

Presidential candidate Hillary Clinton, 2016

Their advice in 2016 was to wait.

“What we are seeing here, and I hope this is temporary, is a disrespect for the Constitution.”

Congresswoman Nancy Pelosi, 2016

“The constitution is 100% clear; the President of the United State has the right to nominate someone to be a justice of the Supreme Court. The Senate’s function is to hold hearings and to vote.”

Senator Bernie Sanders, 2016

FACT CHECK: FALSE. Actually, no, the Constitution says nothing about hearings, and there never were confirmation hearings before 1916. The Senate’s function is to advise and consent (or not, to quote Hillary).

“The blockade on filling a naturally occurring vacancy, in my view, is harmful to the independence of the Article III Branch.”

Senator and Vice Presidential candidate Tim Kaine, 2016

“You cannot keep a seat on the Supreme Court which represents all of us, you cannot keep it vacant against the Constitution.”

Senator Patrick Leahy, 2016

FACT CHECK: FALSE. The Supreme Court represents the LAW, not us.

“They do pretty much everything they can to avoid acknowledging the legitimacy of our democratically-elected President.”

Senator Elizabeth Warren, 2016

Oh that’s right… the Republicans impeached President Obama for non-crimes and non-misdemeanors …..WAIT…NO… It was the Democrats who avoided acknowledging the legitimacy of President Trump and fabricated a nonsensical  impeachment.

“The American people expect the President’s nominee to be given a fair hearing and a timely vote in the Senate.”

Congresswoman Nancy Pelosi, 2016

Was that hearing for Brett Kavanaugh fair?

“Every day that goes by without a ninth justice is another day the American people’s business is not getting done.”

Senator Chuck Schumer, 2016

And what business did the House of Representatives get done over the last two years?

“I say to you: do your jobs, vote for a Supreme Court Nominee.”

Senator Elizabeth Warren, 2016

“Instead of just saying the blanket rule is no matter who you are, no matter what your qualifications, because you were sent by this president we will create a unique rule for you and refuse to entertain you.”

Senator and Vice Presidential Candidate Tim Kaine, 2016

“One of the most important consequences of who is president of the United States is who sits on the United States Supreme Court.”

Senator and Vice Presidential candidate Kamala Harris, 2020

“If you want to stop extremism in your party, you can start by showing the American People that you respect the President of the United States and the Constitution.”

Senator Elizabeth Warren, 2016

“The American People deserve a fully staffed court of nine.”

Vice President Joe Biden, 2016

References:

  1. Main photograph credit: AFP
  2. https://en.wikipedia.org/wiki/Robert_Bork_Supreme_Court_nomination
  3. https://en.wikipedia.org/wiki/Clarence_Thomas_Supreme_Court_nomination
  4. https://reason.com/2020/07/31/when-joe-biden-tried-to-paint-clarence-thomas-as-a-crazy-libertarian/
  5. https://en.wikipedia.org/wiki/Brett_Kavanaugh_Supreme_Court_nomination
  6. The information on the history of the Supreme Court nominations was taken from Thomas Jipping, Senior Legal Fellow and Deputy Director of the Edwin Meese Center for Legal and Judicial Studies. Sound starts at 13:00: https://www.youtube.com/watch?v=GBtkgWvKo28
  7. https://ij.org/sc_courting_history/the-dramatic-story-of-the-first-senate-confirmation-hearings-for-a-supreme-court-nominee-courtinghistory/
  8. https://mobile.twitter.com/i/status/1307877608487628802

Author: The MoCo Conservative

The MoCo Conservative blog and podcast provide a voice for the not-so-silent majority and disenfranchised voters in Maryland, Virginia, and Washington, D.C. Our goal is to aggregate published Conservative content written by residents of the Beltway and beyond. Our blog and podcasts cover a variety of topics and responses from concerned citizens, both anonymous and names, who are directly impacted by the reckless policies put forth by those in positions of authority.

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