Bench Memos

Law & the Courts

Poor Losers

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, “a powerful member of the Democratic leadership,” earned enthusiastic applause at an American Constitution Society convention by telling his liberal audience that the Senate “should not confirm another U.S. Supreme Court nominee under President Bush ‘except in extraordinary circumstances.’” (Schumer did not specify the means he would use, but it’s fanciful to think that Democrats wouldn’t have found it attractive to apply to any Supreme Court nominee the same course of inaction they applied to lower-court nominees they wanted to block.)

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.

So, no, Democrats, the Scalia vacancy wasn’t stolen from you. Senate Republicans won it fair and square.

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