Judge Gorsuch Meets All the Democratic Standards for SCOTUS Nominees

Today, Michael Thielen, Executive Director of the RNLA, wrote an op-ed for The Daily Caller pointing out that Judge Gorsuch meets and should be held to all the Democratic Standards as applied to past Supreme Court nominees in recent history.

The Schumer Standard:

First and foremost, the Senate was merely following the Schumer Standard.  In July 2007, current Minority Leader and then-Senator Chuck Schumer said if any new Supreme Court vacancies opened up, Democrats should not allow President Bush the chance to fill it “except in extraordinary circumstances,” as his term was almost over.  July 2007 was seven months sooner than Senate Leader Mitch McConnell invoked the Schumer Standard.  It should also be noted Leader McConnell used the Schumer Standard before Garland was even nominated. . . . Second, the Gorsuch hearing should have nothing to do with Judge Garland or his nomination.  The Garland Nomination in 2016 was not about his qualifications, but solely turned on the Senate process in an election year per the Schumer Standard.  This is a non-issue today.

 The Leahy Standard:

Meanwhile, the next Democratic standard dates to the Reagan Era and was established when considering Antonin Scalia’s Supreme Court Nomination.  The Leahy Standard announced in 1986 by the longest-serving senator and former Judiciary Chairman Patrick Leahy says: “I think as members of the [Judiciary] Committee, we should respect the mandate the president has earned.  The president had told us in 1980 and 1984 he would appoint judges of his philosophy.  He was given a mandate to do that.  This Committee, if the nominees are otherwise qualified, should respect that.” 

Judge Gorsuch more than satisfies both elements of the Leahy Standard.  President Trump went further than President Reagan by announcing a list of 21 potential judges that he would nominate during the 2016 campaign.  Gorsuch was on that list.  President Trump decisively won the Presidency. Therefore, it is clear that President Trump clearly has a mandate to nominate and confirm Gorsuch. . . The second element of the Leahy Standard requires a nominee be “otherwise qualified.”  Fortunately, we do not have to guess what Senator Leahy meant in this case.  Senators Leahy and Schumer have been very clear in the later standard: the American Bar Association’s (ABA) assessment being the “gold standard” in evaluating federal judicial nominations.  Here, the ABA has given Judge Gorsuch its highest rating, unanimously well-qualified.  As such, Gorsuch easily meets these Standards established by the Democrats. 

The Ginsburg Standard:

What if Neil Gorsuch fails to adequately testify at his confirmation?  Well — the reality is by the standards of the Democrats’ beloved Justice — Democrats simply cannot complain.  As liberal icon Justice Ruth Bader Ginsburg stated during her confirmation hearing to the Supreme Court, she could offer “no hints, no forecasts, no previews.” 

The Reid Standard:

However, if Senator Schumer insists on ignoring all his own side’s standards, Leader McConnell can use one last Democrat Standard, the Reid Standard.  Then-Senate Majority leader Harry Reid changed the procedure to requiring a simple majority of votes for all nominees, but Supreme Court nominees.  However, Reid made clear that was a mere formality, when he said last October:  “I really do believe that I have set the Senate so when I leave, we’re going to be able to get judges done with a majority,” he said. “It’s clear to me that if the Republicans try to filibuster another circuit court judge, but especially a Supreme Court justice, I’ve told ’em how and I’ve done it, not just talking about it. I did it in changing the rules of the Senate. It’ll have to be done again.” 

So, the Reid Standard clears the way for the Republicans to confirm a Supreme Court nominee as always been done with a simple majority.  Senator Schumer responded to Reid’s comments by saying: “I hope we don’t get to that”. . . The irony is if the Democrats don’t follow their own clear and articulated standards, Leader McConnell may be forced to make them follow their own former leader’s standards and impose the Reid Standard upon the Senate.

The full article is a good read especially as the Senate Judiciary Committee questions Judge Gorsuch. Yesterday, opening statements were made by the senators on the Judicary Committee and Judge Gorsuch. Today, the first round of questions are proceeding one-on-one by the senators on the Committee. Tomorrow, round two is expected to commence and scheduled to conclude. Thursday, the Committee will hear testimony by various legal experts. 

Follow the RNLA's real-time Twitter commentary today and tomorrow here. Also, please consider signing the RNLA's letter to the Senate in support of Judge Gorsuch's confirmation here.

Republicans Didn't "Steal" Scalia Vacancy

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.

Senate Has No "Constitutional Duty" to Consider or Confirm a Supreme Court Nominee

Today, President Obama nominated D.C. Circuit Judge Merrick Garland to the Supreme Court vacancy left by the untimely death of Justice Antonin Scalia, claiming that the Senate had a "constitutional duty" to hold hearings and vote on Judge Garland's nomination.  This is consistent with statements by Senate Democrats, many of which contradict their previous statements about nominees submitted to the Senate by Republican Presidents.

The Washington Post's analysis of that claim concluded that it contained significant factual error (3 out of 4 Pinnochios) (emphasis added):

As you can see, there is no recent parallel to the current situation: a president filling a sudden vacancy on the court in an election year when the Senate is controlled by the opposition party, particularly when the vacancy occurred with nearly a year left in the presidential term. 

But it is also clear that politics has always played a role — and the Senate has set the rules to act as it wants. Nearly 200 years ago, the Senate made it clear that it was not required to act on a Supreme Court nomination. In periods of divided government, especially with elections looming, the Senate has chosen not to act — or to create circumstances under which the president’s nominee either withdrew or was not considered. Indeed, the patterns don’t suggest the Senate used procedures out of constitutional duty, out of deference for what the Constitution says or what previous Senates have done. Instead they used procedures based on the political circumstances of each confirmation. 

It’s matter of opinion whether a refusal to consider a nominee is a dereliction of constitutional duty or walking away from a constitutional responsibility. But the Senate majority can in effect do what it wants – unless it becomes politically uncomfortable. Democrats who suggest otherwise are simply telling supporters a politically convenient fairy tale.

In reacting to Judge Garland's nomination, RNLA leaders agree that the Senate is in control of its own process and of the decision whether to consider a nominee:

RNLA Chair Randy Evans: “The American people should have the opportunity to weigh in on such an important and pivotal nomination. . . . Democracy works best when government officials, including the President, let the people be heard.” 

RNLA Judicial Affairs Vice President Stefan Passantino: “While our president had the constitutional right to nominate Merrick Garland, so too does the Senate have the right to withhold consent in a presidential election year.” 

The RNLA thanks Senate Republicans for their continued devotion to principled defense of the Constitution by not considering a nomination to the Supreme Court that could negatively transform the Court.

March 4 - Nationwide Conference Call on Justice Scalia's Legacy with Ed Whelan

On March 4, RNLA is hosting a nationwide conference call on Justice Scalia's legacy with Ed Whelan, President of the Ethics and Public Policy Center and former law clerk to Justice Scalia.  Ed will discuss the importance of Justice Scalia's jurisprudence and the importance of waiting for the next President to appoint his successor.  He will also take questions.

Shortly after Justice Scalia's sudden passing, Ed wrote:

It’s been more than 80 years since a Supreme Court justice was confirmed in an election year to a vacancy that arose that year, and there has never been an election-year confirmation that would so dramatically alter the ideological composition of the Court. 

. . . Senate Republicans would be grossly irresponsible to allow President Obama, in the last months of his presidency, to cement a liberal majority that will wreak havoc on the Constitution. Let the people decide in November who will select the next justice.

Through a series of tweets, Ed has reiterated the importance of Senate Republicans holding firm on not holding a hearing for any person President Obama nominates to fill Justice Scalia's seat on the Court.

Ed is also an expert on the judicial confirmation process and the Senate's role in that process:

The only real question is over how the Senate can and should exercise its advice-and-consent role. And the clear answer to that twofold question is that the Senate has the plenary power to exercise its advice-and-consent role however it wishes (as Democrats have long recognized . . . ) and that the only constraints are political, not constitutional, in nature.

The RNLA invites all current members to join us on Friday, March 4, at 12:30 PM EST to hear Ed Whelan's thoughts on Justice Scalia's legacy and the importance of the current vacancy on the Supreme Court.

Supreme Court Nominations in Election Years: Part 3 - History

In the days since Justice Scalia's untimely passing, pundits and scholars have been using the history of Supreme Court nominations and confirmations to make their chosen political point - either that the Senate should or should not confirm a Supreme Court nominee in an Election Year.  

These are the simple facts regarding Supreme Court nominations and confirmations in Election Years since the Civil War:

• The last justice confirmed during an Election Year to a vacancy that arose in that year was Justice Cardozo in 1932.  When President Hoover nominated Justice Cardozo, he nominated a person of the opposite party.
• The last justice confirmed during an Election Year to a vacancy that arose in that year when the Presidency and the Senate were held by different parties was Justice Fuller in 1888.
• The last justice confirmed during an Election Year to a vacancy that arose in the year prior was Justice Kennedy in 1988.  Justice Kennedy was the third nominee to the vacancy.  If not for the delay caused by the unprecedented obstruction of President Reagan's first nominee, Judge Robert Bork, the vacancy almost surely would have been filled in 1987.

Prior to 1916, the confirmation process was vastly different from today's extended and highly publicized process.  Confirmation hearings were not regularly held, and nominees were frequently confirmed by a voice vote.  

Reviewing the actual historical facts in modern judicial confirmations presents a clear picture of Supreme Court nominees not being confirmed in an Election Year to vacancies that occurred in that year.

Supreme Court Nominations in Election Years: Part 2 - The Schumer Rule

The practice of the Senate not confirming Supreme Court nominees in an Election Year has not been made up by Republicans in response to Justice Scalia's untimely passing.  It is a rule first outlined by the Democrat poised to replace Sen. Harry Reid as Minority Leader.   


In July 2007, fully 18 months before the end of President George W. Bush's second term of office, Sen. Chuck Schumer advocated blocking any further Bush nominees to the Supreme Court:

[F]or the rest of this President’s term . . . :  We should reverse the presumption of confirmation.  The Supreme Court is dangerously out of balance. . . . Given the track record of this President and the experience of obfuscation at the hearings, with respect to the Supreme Court, at least:  I will recommend to my colleagues that we should not confirm a Supreme Court nominee EXCEPT in extraordinary circumstances.

As we noted in Part 1 of this series, in modern times, Supreme Court vacancies that occur in election years are traditionally not filled until after the election, giving the people an opportunity to speak on the issue.  The Senate holds the constitutional power to advise and consent on the president's nominees, but per Sen. Schumer's own rule, the Senate should not confirm a potential Supreme Court justice nominated by a lame-duck president.

Supreme Court Nominations in Election Years: Part 1

The RNLA mourns the sudden passing of Justice Antonin Scalia, along with the rest of the country.  His passing leaves a vacancy on the Supreme Court, and though Justice Scalia can never truly be replaced, a justice to succeed him will be nominated by the President and confirmed by the Senate.  The justice to succeed Justice Scalia should not be nominated by this President and confirmed by this Senate, however.

In modern American history, a Supreme Court vacancy that arises in an election year is not filled until after the election.  As Shannen Coffin explains:

[T]here simply is no precedent in modern times for filling a vacancy that arises in an election year.  You have to go back to Benjamin Cardozo in 1932 to find a similar circumstance.  Democrats have pointed to the appointment of Anthony M. Kennedy in 1988, but that vacancy arose in June 1987, the summer before the election, and only remained open because Democrats had already blocked one of the most qualified nominees in our history from the Court (Robert Bork).

Ed Whelan notes the importance of this particular vacancy, given Justice Scalia's intellectual force and analytical consistency:

[T]here has never been an election-year confirmation that would so dramatically alter the ideological composition of the Court. . . . Senate Republicans would be grossly irresponsible to allow President Obama, in the last months of his presidency, to cement a liberal majority that will wreak havoc on the Constitution. Let the people decide in November who will select the next justice.

It is only proper for the American people to have an opportunity to exert a measure of control on an institution that is normally not open to the influence of the public will.  The people are not able to select the nominee, but they should be able to select the person who selects the nominee.