Breaking Judicial Norms: A History
A Democratic Senate pattern, from Bork to the filibuster rule.
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Senate
Minority Leader Chuck Schumer is widely reported to have told his
Democratic colleagues on Saturday that “nothing is off the table for
next year” if Republicans confirm a Supreme Court nominee in this
Congress. He means this as a threat that Democrats will break the
filibuster and pack the Court with more Justices in 2021 if they take
control of the Senate in November’s election. So
what else is new? Democrats have a long history of breaking procedural
norms on judges. While packing the Court would be their most radical
decision to date, it would fit their escalating pattern. Let’s review
the modern historical lowlights to see which party has really been the
political norm-breaker:
• The Bork assault.
When Ronald Reagan selected Robert Bork in 1987, the judge was among
the most qualified ever nominated. No less than Joe Biden had previously
said he might have to vote to confirm him. Then Ted Kennedy issued his
demagogic assault from the Senate floor, complete with lies about women
“forced into back-alley abortions” and blacks who would have to “sit at
segregated lunch counters.” Democrats and the press then unleashed an
unprecedented political assault.
Previous
nominees who had failed in the Senate were suspected of corruption (Abe
Fortas) or thought unqualified (Harrold Carswell). Bork was defeated
because of distortions about his jurisprudence. This began the modern
era of hyper-politicized judicial nominations, though for the Supreme
Court it has largely been a one-way partisan street.
No
Democratic nominee has been borked, to use the name that became a verb.
Even Justice Sonia
Sotomayor, whose left-wing legal views were obvious
upon her nomination, received a respectful GOP hearing and was
confirmed 68-31 with nine GOP votes. Justice Ruth Bader Ginsburg was
confirmed 96-3, Stephen Breyer 87-9, and Elena Kagan 63-37.
Democrats,
meanwhile, have escalated to character assassination. Clarence Thomas
was unfairly smeared on the eve of a Senate vote and barely confirmed.
Democrats accused Samuel Alito of racism and sexism for belonging
decades earlier to an obscure Princeton alumni group.
Democrats
promoted the uncorroborated claims of women accusers against Brett
Kavanaugh from his high school and college years. Sen. Sheldon
Whitehouse undertook a deep dive into Justice Kavanaugh’s high-school
yearbook. This treatment has become the real Democratic Party “norm.”
• Filibustering appellate nominees.
It’s mostly forgotten now, but in George W. Bush’s first term Senate
Democrats pioneered the use of the filibuster to block nominees to the
circuit courts. That was also unprecedented.
Miguel
Estrada was left hanging for 28 months before he withdrew, though he
had support from 55 Senators. A 2001 Judiciary Committee memo to Sen.
Dick Durbin was candid in urging opposition to Mr. Estrada because “he
is Latino” and couldn’t be allowed to reach the D.C. Circuit Court of
Appeals lest he later become a candidate for the Supreme Court.
Democrats
also filibustered or otherwise blocked appellate nominees Priscilla
Owen, Janice Rogers Brown, Charles Pickering Sr., Henry Saad, Carolyn
Kuhl, William Pryor, David McKeague, Richard Griffin and William Myers,
among others.
This
violation of norms was stopped only after the GOP regained the majority
and threatened to change Senate rules. A handful of Senators in both
parties then negotiated a deal to vote for nominees except in
“extraordinary circumstances.” Republicans did not unilaterally break
the filibuster for judicial nominees.
• Breaking the filibuster for appellate nominees.
That norm-breaker was executed by Democrats in 2013, led by then
Majority Leader Harry Reid with the enthusiastic support of Barack
Obama. Democrats rewrote Senate rules in mid-Congress, on a party-line
vote, to add three seats to the D.C. Circuit. The goal was to stack that
court with liberals who would rubber stamp Mr. Obama’s “pen” and
“phone” regulatory diktats.
Those
liberals have done that numerous times, while sometimes blocking
President Trump’s deregulatory rule-makings. But the political cost has
been high, as we warned at the time. Harry Reid’s precedent allowed GOP
leader Mitch McConnell to do the same when Democrats tried to filibuster
Neil Gorsuch. The GOP majority can now confirm Mr. Trump’s next nominee
with 51 votes.
***
Urged
on by the progressive media, Democrats are now vowing that they’ll
break the 60-vote legislative filibuster rule to add two, or even four,
new Justices to the Supreme Court next year for a total of 11 or 13. But
they have already been saying this for months. Barack Obama gave the
green light when he used John Lewis’s funeral to call the filibuster a
“Jim Crow relic.” Never mind that as a Senator he endorsed a filibuster
of Mr. Alito. Mr. Whitehouse and four colleagues explicitly threatened
in an amicus brief that the Court would be “restructured” if Justices
rule the wrong way.
Republicans
could surrender and not confirm a nominee, and Senate Democrats would
still break the filibuster. Court packing would then become a sword
hanging over the Justices if they rule contrary to the policy views of
the Senate left. Leader Schumer won’t resist because he is quaking at
the prospect of a primary challenge from Rep. Alexandria Ocasio-Cortez
in 2022.
Contrast
this Democratic record, and now this court-packing threat, with the GOP
record. In 2016 Mitch McConnell and his colleagues refused to confirm
Merrick Garland and said the voters should decide the issue in the
election. Mr. Schumer had previously vowed the same standard in the
final years of George W. Bush. Mr. McConnell essentially made a
political bet by putting judicial philosophy and the Supreme Court at
the center of the 2016 campaign.
Judges
were also on the Senate ballot in 2018 after the Kavanaugh ugliness.
The GOP gained two net seats. The use of their elected Senate power now
to confirm a nominee would be a wholly legitimate use of their
constitutional authority. They should not be cowed by Democratic threats
from confirming a nominee. Democrats have shown they will do what they
want with Senate power no matter what Republicans do now.
What
Republicans should do is let the voters know about the Democratic
filibuster and court-packing plans, and make them a campaign issue.
Democratic Senators and candidates should have to declare themselves not
merely on Mr. Trump’s nominee but on the filibuster and court-packing
that Mr. Schumer has now told the country will be on the table.
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Appeared in the September 21, 2020, print edition.
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