Bench Memos

Law & the Courts

Senator Schumer’s Sour Grapes

Senate Minority Leader Chuck Schumer (D-NY) participates in a news conference at the U.S. Capitol, October 1, 2020. (Erin Scott/Reuters)

The Washington Post reports that Senate Minority Leader Chuck Schumer (D., N.Y.) forced the Senate into a brief (and rare) closed session in a last ditch effort to convince Republicans not to proceed with the confirmation of Judge Amy Coney Barrett to the Supreme Court. From the Post:

“The Republican majority is on the precipice of making a colossal and historic mistake,” Schumer said. “The damage it does to this chamber will be irrevocable.”

Schumer painted a party of hypocrisy that had no qualms holding up the nomination of Merrick Garland to the Supreme Court in 2016 and yet is rushing through the confirmation of Barrett just over a week before an election in which tens of millions of Americans have already voted.

To Republicans, Schumer said, “You don’t have the right to argue consistency when you’re doing what you’re doing now.”

“The majority has trampled over norms, rules, standards, honor, values, any of them that could possibly stand in its monomaniacal pursuit to put someone on the court who will take away the rights of so many Americans,” Schumer said.

This is all a bit rich coming from Senator Schumer. Let’s consider some history. Prior to his arrival in the Senate, senators were generally reluctant to openly oppose judicial nominees on ideological grounds, but Schumer worked to change that. He enthusiastically supported a blockade of Bush appellate nominees and rejected President Bush’s appeal for a presumptive confirmation schedule.

Once Republicans retook the Senate, Schumer pushed for the repeated filibusters of President Bush’s nominees and, even after the “Gang of 14” deal, continued in his attempts to use this obstructionist tactic.

Schumer led an unsuccessful effort to filibuster confirmation of Justice Samuel Alito to the Supreme Court. Afterwards, in a 2007 speech to the American Constitution Society, he proclaimed he should have done even more to block Alito’s confirmation, and argued that the Senate should not confirm any additional Bush nominees to the Supreme Court should any more vacancies arise. In his view, senators should seek to prevent judicial confirmations that might tilt the balance of the Court in a way they do not like, including by simply refusing to confirm them – something he would conveniently forget in 2016.

Senator Schumer did not think both parties should have recourse to the same tools of obstruction, however. When Senate Republicans started filibustering some of President Obama’s appellate nominees he eagerly joined then-Senate Majority Leader Harry Reid’s decision to go nuclear, even though Republicans had (at that point) not blocked any more Obama nominees than Democrats had blocked Bush nominees (five each). No matter. The filibuster was gone, and three of Obama’s five blocked nominees were confirmed (all to the D.C. Circuit).

During the closed session, Senate majority leader Mitch McConnell (R., Ky.) rebuked  Schumer for his short memory: “I hope our colleague from New York is happy with what he has built. I hope he is happy with where his ingenuity has gotten the Senate.” There is no question that McConnell upped the ante over the past four years. One might say he hit back twice as hard. Nonetheless, if Schumer is unhappy, he should consider his role in getting the Senate to this point.

Jonathan H. Adler — Mr. Adler is an NRO contributing editor and the inaugural Johan Verheij Memorial Professor of Law at Case Western Reserve University School of Law. His latest book is Marijuana Federalism: Uncle Sam and Mary Jane.

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