Bench Memos

Law & the Courts

Confirming Justice Barrett Is the Opposite of Hypocrisy

Judge Amy Coney Barrett speaks after being nominated to the Supreme Court by President Donald Trump, the White House, September 26, 2020. (Carlos Barria/Reuters)

On October 24, Senate minority leader Charles Schumer (D., N.Y) claimed that Republicans have made a “hypocritical 180-degree turn” by confirming Supreme Court nominee Amy Coney Barrett. According to Schumer, Republicans in 2016 refused to consider President Barack Obama’s nominee to succeed Justice Antonin Scalia simply because it was a presidential-election year. Democrats and their liberal allies may treat this assertion like a self-evident truth, but the public record shows that Republicans took a different position in 2016, one that does not conflict with confirming Barrett today.

Justice Antonin Scalia died on February 13, 2016. Within days, Senate Republicans announced that they would not consider a nominee for this vacancy until a new president was inaugurated in January 2017. Polls at that time showed Trump trailing other Republicans in head-to-head match-ups with either Hillary Clinton or Bernie Sanders. In fact, Trump would not have a polling advantage outside the margin of error for more than three months. Nonetheless, Republicans knew it was important not only to take a clear position early, but to explain that position repeatedly and on the record.

Democrats took an absolute position, saying that the Senate should always consider a president’s nominations, even in a presidential-election year. They said that circumstances do not matter. If that position was correct, then it supports filling the Ginsburg vacancy today.

Republicans, in contrast, said that circumstances do matter. They were not alone. In June 1992, then-Judiciary Committee chairman Joe Biden (D., Del.) argued that if a Supreme Court vacancy occurred in that presidential-election year, the president should not make a nomination to fill it. If he did, Biden said in a lengthy Senate floor speech, the Judiciary Committee should not consider the nomination. He repeatedly cited as a reason the political circumstance of “divided government” because, as would occur again in 2016, the Senate and White House were controlled by different parties. If Biden’s 1992 position, echoed by Republicans in 2016, was correct, then it also supports filling the Ginsburg vacancy today.

Republicans explained their 2016 position over and over again. Three days after Scalia’s death, Senate majority leader Mitch McConnell (R., Ky.) and Judiciary Committee chairman Charles Grassley (R., Iowa) wrote in the Washington Post that the confirmation process should be deferred because Barack Obama was a “lame-duck president” and the Senate was of a different party.

On February 22, 2016, McConnell spoke on the Senate floor and noted that the Senate last filled a Supreme Court vacancy that arose in a presidential-election year under “divided government” in 1888. The next day, McConnell again observed that “since we have divided government, it means we have to look back almost 130 years to the last time a nominee was confirmed in similar circumstances.” In a March 20, 2016, interview, McConnell once again explained that the next president, rather than a “lame-duck president on the way out the door,” should fill the vacancy.

On February 23, 2016, Senate Judiciary Committee Republicans wrote McConnell that their decision not to take up a nomination to fill the Scalia vacancy until after the next president was sworn in was based on “the particular circumstances under which this vacancy arises.” These include “divided government, as we have now.”

Individual senators repeatedly made the same argument. On February 22, for example, Grassley examined Biden’s 1992 speech and his reasons for saying the Senate should not consider a Supreme Court nomination. Grassley concluded that Biden’s guidance “is particularly instructive because he delivered his remarks in a Presidential election year during a time of divided government.” Three days later, Grassley again reviewed Biden’s argument, reminding the Senate that Biden “delivered his remarks when we had a divided government, as we do today.” Grassley would also explain the relevance of Biden’s argument in a speech on March 14, again noting “the divided government the American people delivered over the last several election cycles.”

On February 25, Senator Orrin Hatch (R., Utah) described the circumstances that counseled deferring the confirmation process: a Senate led by the opposite party of a “term-limited President.” Hatch made the same point in a Senate floor speech on March 14. Senator John Cornyn (R., Texas) emphasized the same factors of divided government and the fact that the election was certain to give us a new president in Senate floor speeches on February 24 and March 15. There are many more examples, but you get the point.

No Democrat objected to Biden’s argument in 1992 or indicated that the political circumstances he cited did not justify deferring the confirmation process. With a Republican in the White House in 1992, Democrats apparently agreed that circumstances were definitely relevant to how the Senate would handle a Supreme Court nomination. No Democrat suggested, as they would do in 2016 with a Democrat president, that the Senate should always consider nominations in an election year.

The record is crystal clear that Republicans declined to consider a Supreme Court nominee in 2016 because of two “particular circumstances: divided government and the certainty that the election would result in a new president. Those circumstances supported the argument that, as McConnell and Grassley wrote, the American people should weigh in on “whom they trust to nominate the next person for a lifetime appointment to the Supreme Court.” No “similar circumstances exist today. Instead, the only parallel between 2016 and 2020 is that they are both presidential-elections years. And since no one argued in 2016 that this alone should dictate the Senate’s confirmation process, there’s no reason for it to do so today.

Schumer today creates the illusion of Republican hypocrisy by accusing them of a 2016 position they did not take. What more could Republicans have done to make clear their reasons for putting the process to fill the Scalia vacancy on hold? Democrats obviously did not find those reasons persuasive then, but they should at least the truth about those reasons today. If words have meaning, and facts matter at all, Schumer’s accusations today are pure fiction. Handling a different situation differently is the opposite of hypocrisy.

Thomas Jipping is the deputy director of the Edwin Meese III Center for Legal and Judicial Studies and a senior legal fellow at the Heritage Foundation.

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