Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—March 4

Chuck Schumer and democrats hold a news conference in Washington, January 31, 2020. (Amanda Voisard/Reuters)

2016—In an op-ed in the New York Times, Vice President Biden argues—or appears to argue (his prose meanders)—that the Senate has a constitutional duty to give a Supreme Court nominee a committee hearing and an up-or-down vote on the Senate floor.

Such a claim cannot be taken seriously. The Constitution (Article II, section 2) restricts the president’s power to appoint executive-branch and judicial-branch officers by conditioning any such appointment on prior receipt of the Senate’s “Advice and Consent” on a nomination. But the Constitution says nothing about how the Senate should go about exercising its power to advise and consent-or-withhold-consent, and it thus leaves the Senate entirely free to exercise that power however it sees fit.

Biden’s apparent claim is belied by his own history (as well as by the Senate’s longstanding practices for executive-branch officers and lower-court judges, whose nominations are governed by the same constitutional provision). In 2006, Biden was among the 25 Democrats who tried to filibuster the Supreme Court nomination of Samuel Alito in order to prevent an up-or-down vote on the Senate floor. And in a Senate floor statement in June 1992, Biden, as chairman of the Senate Judiciary Committee, made clear that, if a Supreme Court vacancy were to arise during the presidential campaign, his committee would not move forward on a nomination. (In his op-ed, Biden implausibly spins his 1992 statement.)

2020—Speaking at a pro-abortion rally outside the Supreme Court, Senate Democratic leader Chuck Schumer makes thuggish remarks that sure seem to threaten violence against Justice Gorsuch and Justice Kavanaugh if they don’t rule as he likes in abortion cases:

“I want to tell you, Gorsuch. I want to tell you, Kavanaugh. You have released the whirlwind, and you will pay the price. You won’t know what hit you if you go forward with these awful decisions.”

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