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.