Democrats have begun to attack both the Supreme Court confirmation process and some of President Trump's potential nominees. We provide the facts and some real details on the highly qualified judges.
Senate Minority Leader Schumer has been saying the Biden Rule applies to the Kennedy vacancy. While we think it is great that Schumer now acknowledges the Biden Rule (which his own party established), he is purposely misconstruing it and applying it completely wrong. As the Washington Post explains:
The GOP did argue in 2016 that a Supreme Court vacancy shouldn't be filled until after voters had their say in the coming election, but their argument was about who gets to nominate the justice — not who gets to confirm him or her. It was clearly about presidential election years, not midterms.
For comparison, Republicans did not attempt to stop Elana Kagan’s confirmation in summer 2010, just ahead of the Senate midterm election (when Republicans won back the Senate); despite, Senate Republicans ability to filibuster. The Democrats are proving they have no interest confirming a qualified Justice to the U.S. Supreme Court, but would rather play partisan political games and continue their efforts to "resist" and obstruct President Trump--even if the country suffers as a result.
Over the next few days, we will highlight some of the nominees that are most talked about. Below are three highly respected judges from President Trump’s list of potential nominees that are currently gaining the most attention in the media.
Amy Coney Barrett of Indiana, is a Judge for the U.S. Court of Appeals for the Seventh Circuit. Judge Barret is a graduate and Professor at the Notre Dame School of Law since 2002, and clerked for Judge Laurence H. Silberman of the U.S. Court of Appeals for the D.C. Circuit and for Associate Justice Antonin Scalia of the U.S. Supreme Court. She also served as an associate at Miller, Cassidy, Larroca & Lewin in Washington, D.C., where she litigated constitutional, criminal, and commercial cases in both trial and appellate courts. As the Washington Times states Judge Barret had a remarkably difficult experience being confirmed due to potentially anti-Catholic bias:
Republicans said Democrats were bringing “Catholic bigotry” back to the halls of Congress as almost all Democratic senators voted to try to filibuster a Notre Dame University professor President Trump has nominated to be a judge on a federal appeals court.
The GOP defeated the filibuster on a 54-42 vote, though only three Democrats joined Republicans in backing Amy Coney Barrett, the law professor Mr. Trump nominated to the 7th U.S. Circuit Court of Appeals. Sen. Joe Manchin, West Virginia Democrat, Sen. Joe Donnelly, Indiana Democrat, and Sen. Tim Kaine, Virginia Democrat were the three who broke with their party to back Ms. Barrett. “Amy Barrett happens to be a nominee who is Catholic—and who speaks freely and openly about her faith and its importance to her,” said Senate Majority Leader Mitch McConnell “For some on the Left, that seems to be a disqualifying factor for her nomination. I would remind colleagues that we do not have religious tests for office in this country.”
Thomas Hardiman of Pennsylvania, U.S. Court of Appeals for the Third Circuit is another potential Trump nominee. As SCOTUSblog explains, Judge Hardiman is highly qualified and a strong conservative:
The Massachusetts-born Hardiman became the first person in his family to go to college when he went to the University of Notre Dame, and he financed his law degree at the Georgetown University Law Center by driving a taxi. (If nominated and confirmed, Hardiman would also bring educational diversity to a court on which all of the other justices attended Ivy League law schools.)
After his law school graduation, Hardiman worked for two years in the Washington office of Skadden Arps before moving to Pittsburgh, where he practiced law until 2003. At the age of 37, Hardiman became a federal district judge; he was appointed to the 3rd Circuit in 2007, at the age of 41 – yet another similarity with Sotomayor, who also became a district judge at the age of 37 and took her seat on the U.S. Court of Appeals for the 2nd Circuit at the age of 44.
During his nearly ten years as a federal appeals court judge, Hardiman has weighed in on a variety of hot-button topics important to Republicans, and his votes in these cases have consistently been conservative. For example, the gun rights cases in which Hardiman has participated reflect an originalist approach to the Second Amendment right to bear arms.
Brett Kavanaugh of Maryland, U.S. Court of Appeals for the District of Columbia Circuit. Judge Kavanaugh grew up in Bethesda and attended Yale University and Yale Law School. He later clerked for Kennedy on the Supreme Court and served as a counsel in the White House of President George W. Bush.
The Baltimore Sun recently highlighted Judge Kavanaugh strong conservative roots:
On the Court of Appeals, Kavanaugh has frequently provided a conservative opinion. In 2017, he was among three dissenting judges on a decision that allowed an immigrant teenager to get an abortion. At the time, he said the majority had "badly erred" and created a new right for undocumented immigrant minors in custody to "immediate abortion on demand."
The RNLA believes any of the three aforementioned judges would each be highly qualified and excellent picks by President Trump.
Ed Whelan reminds us that Senate Republicans, in refusing to hold hearings on Merrick Garland's nomination to the Supreme Court, were only following the Democrats' advice (emphasis added):
I see that some on the Left are now trying to recast their huge political loss on the Scalia vacancy as a claim that Republicans “stole” the Scalia seat. Two observations:
1. The Scalia vacancy never belonged to anyone, so it makes no sense to say that it was stolen. Or is the Left going to go beyond its “obviously fatuous” claim that the Senate had a constitutional duty to hold an up-or-down vote on the Garland nomination and now insist that the Senate had a constitutional duty to confirm Garland?
2. Let’s assume that the political situation had been reversed: that is, that a liberal justice died in an election year while a Republican was president and Democrats controlled the Senate. It’s a very safe bet that Democrats would have taken exactly the course that Senate Republicans did.
Indeed, then-Judiciary Committee chairman Joe Biden threatened exactly that a full 24 years ago, during the 1992 election year. And in late July 2007—more than 15 months in advance of the 2008 presidential election—Democratic senator Chuck Schumer [said] that the Senate “should not confirm another U.S. Supreme Court nominee under President Bush ‘except in extraordinary circumstances.’” . . .
So those who imagine that the battle over the Scalia seat involved some dramatic escalation of the confirmation wars are overlooking that Senate Democrats had already baked that escalation into the process. What made the Scalia vacancy battle different from earlier battles were two simple facts: (1) this was the first time since 1991 that a president was making a nomination to a Senate controlled by the opposite party, and (2) the vacancy arose in an election year.
The battle over the Scalia seat is likely far from over, but after the election last week, Democrats are losing the battle. But claims that the Republicans were acting in an unprecedented fashion in the past few months are overblown.
Yesterday, this
blog addressed Hillary Clinton’s take on Citizens United and its impact on
election law. As
a lawyer, most would believe that Hillary Clinton would be aware that partisan
politics have no place on the Supreme Court. Yet her hypocrisy on this issue is more clearly evident than it is with President Obama, or Sen. Sanders. At
least Obama addressed his attempt to stall a SCOTUS nomination.
As has been the case with so many Hillary
“issues,” she failed to mention her attempt to block the nomination of Samuel A. Alito, Jr., to the Supreme Court. The
Washington Times published
an article in which Sen. Chuck Grassley pointed out the
absurdity of the timing and likely reasons for her focus:
Mr. Grassley, in a statement Monday, said Mrs. Clinton’s
attack on him was a campaign ploy to try to divert attention away from her
secret email account during her four years as secretary of state. Both Mr.
Grassley and Mr. Johnson have been investigating her emails.
Republican National Committee spokesman
Michael Short said Mrs.
Clinton’s attacks were odd because she herself took
part in filibustering President George W. Bush’s judicial picks, including an
attempted blockade on Samuel A. Alito Jr.
“The only reason Hillary
Clinton is calling on Republicans to breach decades
of bipartisan precedent of not confirming election-year Supreme Court nominees is so she could have a liberal majority on the court to help her carry on President Obama’s legacy of executive
overreach if elected.”
It is not uncommon for
Clinton to flip-flop when the timing benefits her political ambitions as
evidenced by Michael Short’s comment above. Said another way, for Hillary, the “Biden rule”
only applies when there is a Republican President. Many look at this for what it is;
an attempt to shift the public’s attention away from a potential FBI investigation and her dramatic primary losses in three straight states while continuing attempts to build a radical, left-leaning court that would support executive overreach. The fight is not over the President's ability to nominate a candidate but rather the Senate's proper decision not to grant that candidate a hearing.
Clinton continued stating that this "obstructionism" has provided:
. . . the same disregard for the rule of law
that's given rise to the extremist candidacies of Donald Trump and Ted Cruz . .
. .
Oddly enough, the Democratic party has supported the rise of a
self-proclaimed democratic socialist that recently ran the table in three primaries during elections that have largely seen a downturn in
democratic turnout due
to the lack of voter enthusiasm.
The people deserve the
right to speak on the next Supreme Court Justice, just as they chose the majority
in the Senate. The Obama/Clinton combo has done enough damage to last a lifetime and many are infuriated with the continued executive overreach, lackadaisical
foreign policy, and troublesome military strategy. Hillary has a plan to get around such problems: more executive
overreach. The right must unify in 2016, if for no other reason than to ensure Hillary's defeat while there is still something to protect. Applaud your Republican Senators for standing up for the people's right to speak on the future of the Supreme Court by not acting on the nomination of Judge Garland to the Supreme Court until after the election in November.
Sen. Orrin Hatch, Chairman of the Senate Finance Committee and former Chairman of the Senate Judiciary Committee, argues persuasively today in the New York Times that the Senate should wait until after the November 2016 election to allow the people to decide who fills the vacancy on the Supreme Court left by the passing of Justice Scalia:
Given that the American people have elected a president and a Senate majority with drastically different views on the nature of legitimate constitutional government — a split decision of sorts — it seems appropriate to let 2016 voters decide which of two very different paths the Supreme Court should take.
But the American people can influence that course only if the Senate holds confirmation proceedings after the election season has ended. This should not be a controversial position.
After all, both Republican and Democratic leaders, including Vice President Joseph R. Biden Jr., have argued in the past that the Senate should defer consideration of life-tenured judges until after presidential election cycles.
Throughout its history, the Senate has never confirmed a nominee to fill a Supreme Court vacancy that occurred this late in a term-limited president’s time in office. Considering a nominee now — in the middle of the nastiest election campaign in recent memory — could damage the judicial confirmation process beyond repair.
. . . Democrats have no credibility in lecturing Republicans on how to conduct the current confirmation process. Their recent actions only validate the rationale for waiting. From personal attacks on Republican committee chairmen to coordinated disruptions by professional activists, liberal pressure tactics belie any commitment to keeping politics out of the confirmation process.
Considering a nominee in the midst of a toxic presidential election would be irresponsible. Doing so would only further inject a circus atmosphere into an already politicized confirmation process. Conducting a thoughtful and substantive deliberation after the election is in the best interests of the Senate, the judiciary and the country.
The RNLA fully agrees with Sen. Hatch and stands with him and other Republican Senators as they refuse to hold hearings or vote on President Obama's nomination of Judge Garland to Justice Scalia's seat on the Supreme Court.
