Bench Memos

The Schumer Standard

Some Senators seem to think that they should reflexively vote to confirm any Supreme Court nominee who is qualified for the seat. But to his credit, Senator Chuck Schumer is actually more committed to “ensur[ing] that the Court reflects what America wants, rather than what a diminishing clique of . . . ideologues wish for.” He has called for senators to “reverse the presumption of confirmation” because “The Supreme Court is dangerously out of balance.”

Here’s what Senator Schumer said recently:

Given the track record of this President and the 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. They must prove by actions—not words—that they are in the mainstream, rather than the Senate proving that they are not.

Wait, my bad – that was 2007.

In all seriousness, though, if Schumer’s standard was prudent midway through the third year of Bush’s final term (the rough equivalent of July 2015 in the current cycle), it would be foolish for Senators to treat a nomination in the middle of a heated election year any differently, especially now that the primary voting has already begun. And it is the height of hypocrisy for Democrats to embrace the double standard now that the shoe is on the other foot.

But, one might respond, aren’t they different situations? Actually, the differences between this year’s vacancy and the situation in the summer of 2007 make Schumer’s recommendations against confirmation more relevant, not less. 

Both George W. Bush and Barack Obama had two Supreme Court nominees who encountered pushback from a Senate controlled by the opposing party, but who were ultimately confirmed. Unlike Republicans under Obama, Schumer and his Democrat allies went so far as to attempt a filibuster of Justice Alito, and Schumer later apologized for not having “twisted more arms and done more” to make that filibuster a reality. (Then-Senator Obama was an early supporter of the Alito filibuster effort.)

But if Schumer felt that Alito and the Chief Justice were less moderate than advertised, he should have been even more outraged about how misleading Justice Sotomayor and Kagan’s hearings were. Sotomayor firmly affirmed her commitment to uphold the Second Amendment right to bear arms recently resurrected by Justice Scalia. That is, until she joined a dissent in a subsequent Second Amendment case that disavowed a right to carry a gun, even for self-defense. Kagan stated clearly during confirmation questioning that “There is no federal constitutional right to same-sex marriage.” And of course there wasn’t – until she voted as part of the 5-4 majority that invented one. We know exactly what type of justice Obama will nominate.

Even if Senator Schumer hadn’t done us the favor of telling us already, could anyone doubt what Senate Democrats would have done if a third seat had opened up during President Bush’s term? There would have been no hint of another Bush nominee receiving a hearing, let alone a vote, unless the president had nominated Schumer himself.

Senator Schumer made these comments with 18 months left in the Bush presidency. The current vacancy, on the other hand, arose in the last year of Obama’s second term and in the middle of a hotly-contested election. And if this election has taught us anything so far, it’s that the American people are fed up with Washington elites cramming things down their throats. On both sides of the aisle the voters are in revolt. Isn’t this an even more important opportunity to ask Americans what values they want the Court to reflect?

The constitutional follies of this Administration – from Obamacare to his executive power grabs – were what gave Republicans control of the Senate in 2014. It’s time to call out the Democrats for their hypocrisy and apply the Schumer standard to the Scalia vacancy on the Court.

This post has been updated.

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