The ten Democratic members of the U.S. Senate Judiciary Committee last Thursday boycotted the vote on sending President Trump’s Supreme Court nomination of Judge Amy Coney Barrett to the full Senate for consideration. The Senate is expected to confirm Judge Barrett on Monday.
This refusal by the Democrats to continue their role in the nomination process was sophomoric, especially since they vigorously questioned Judge Barrett for three days. One need not to agree with her judicial philosophy to at least show up and vote up or down on her nomination.
The boycott accomplished nothing except to enable the record to show the Judiciary Committee approved the Barrett nomination unanimously, 12-0.
Among the Democratic talking points against Judge Barrett’s nomination was to assert the nomination process was “illegitimate” and that it was “rushed.” Senate Democratic leader, Sen. Charles Schumer of New York said the nomination was “the most rushed, most partisan and least legitimate process in the long history of Supreme Court nominations.”
Exactly one month will have elapsed between President Trump’s nomination of Judge Barrett and the Senate’s likely approval on Monday. Historically, this nomination was not rushed, as the Senate approved most justices within days or a couple of weeks of submission by the president.
By modern standards, this nomination-to-approval will be swift – except that the Senate approved Mrs. Barrett for the U.S. Circuit Court of Appeals for the 7th Circuit just three years prior. She was a familiar nominee.
Beyond her three years of opinions on the court, there was nothing else to learn about Judge Barrett. Senators have platoons of staff and outside interest group allies to read three years worth of court opinions – and they did, since several senators grilled her about them in granular detail during the committee hearing.
Sen. Diane Feinstein of California, the ranking member on the Judiciary Committee, revealed further the reason for her Party’s acrimony, “Democrats have objected to proceeding on this nomination in the middle of an election…In 2016 the Republicans set a precedent against filling a Supreme Court vacancy in an election when they blocked President Obama’s nominee, Merrick Garland.”
Every member of the United States Supreme Court got there because a president nominated them and the Senate gave its “advice and consent” in accordance with the U.S. Constitution. Every time a vacancy emerged on the High Court, the incumbent president nominated a replacement, including 28 nominations in presidential election years, prior to the Barrett nomination. The Senate confirmed most of them.
President Obama’s nomination of Circuit Court Judge Merrick Garland in 2016 was not the first time an election-year nominee was unable to obtain “advice and consent” by the Senate – in this case by not voting. The Senate rejected six other nominees in election years, either by the Senate taking no action, voting them down, or the nominee withdrew.
The Senate Republicans’ treatment of Judge Garland in 2016 was exactly what Democratic senators in the majority promised they would do to any election-year Supreme Court nominee by a Republican President. When Republican George H.W. Bush was president, then-Democratic Sen. Joe Biden, the chairman of the Judiciary Committee in 1992 stated, “The [Committee] should seriously consider not scheduling hearings on the nomination until after the political campaign season is over.”
Several president-day senators made the same commitment when Republican George W. Bush was president. Sen. Schumer in 2007 said the Senate “should not confirm any Bush nominee to the Supreme Court except in extraordinary circumstances.” This statement was made not in an election year, but nearly 18 months before Bush’s term in office expired.
The Senate’s rejection of Judge Garland, which obviously still stings for the Democrats, also is not unusual historically. Senate Democrats in the majority in 1987 rejected President Ronald Reagan’s nomination of Judge Robert Bork after an unprecedented smear campaign against him. They continued such invective against court nominees Clarence Thomas in 1991 and Brett Kavanagh in 2018, but fell short of defeating them.
Several other presidents from both political parties have had Supreme Court nominations rejected, starting with the first president, the Father of the Country himself, George Washington; and including James Madison, James Polk, and Ulysses Grant.
The late Justice Ruth Bader Ginsburg, who sadly passed away in September, and whose seat Judge Barrett was nominated to fill, once stated the obvious, “The president is elected for four years, not three years. So, the powers that he has in year three continue into year four.”
Does anyone doubt that if a High Court vacancy emerged weeks before an election, a Senate Democratic Majority would swiftly approve a nomination by a Democratic President? Of course they would; and of course they should.
That is why the Republican majority in the Senate will shortly make President Trump’s nominee into Justice Amy Coney Barrett.
Peter Murphy is Founder and Principal of Linden-Grove Strategies, LLC. and writes on public policy. ( @PeterMurphy26)