October 22, 2019
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The Constitution is clear on Supreme Court nominations when hypocritical politicians aren’t

C-SPAN | BDN
C-SPAN | BDN
Joe Biden, then a senator from Delaware, speaks on the Senate floor in 1992, arguing that a president shouldn't make a Supreme Court nomination in an election year.

In June 1992, then-Sen. Joe Biden took to the Senate floor and made an impassioned argument against an election year appointment to the Supreme Court.

At that point, Democrats controlled the Senate and Republican George H.W. Bush was president. The situation Biden addressed in that floor speech was hypothetical. There was no Supreme Court vacancy at the time.

It was a time of divided government, and it long had been, Biden argued. “The public has not given either party a mandate to remake the court into a body reflective of a strong vision of our respective philosophies,” he said, “and both our parties should finally, honestly, admit to that fact.”

Biden is probably wishing he could take back those comments now that a vacancy has opened up on the Supreme Court in an election year and President Obama has the opportunity to nominate someone to fill it — someone who could change the ideological makeup of the court. Indeed, he’s directly contradicted his 1992 statements in arguing against leaving Scalia’s seat vacant.

Meanwhile, Senate Majority Leader Mitch McConnell is probably wishing he could take back some of his words from a 1970 article he wrote in the Kentucky Law Journal reflecting on the then-recent confirmation of Justice Harry Blackmun, a Richard Nixon appointee.

McConnell, having served as a staffer for Kentucky Sen. Marlow Cook, chronicled the evolution of the Senate’s role in the confirmation process into a more assertive one.

Ultimately, though, “the Senate should discount the philosophy of the nominee,” McConnell concluded, except in extreme circumstances, such as the nomination of a Nazi or Communist. “The president is presumably elected by the people to carry out a program and altering the ideological directions of the Supreme Court would seem to be a perfectly legitimate part of a Presidential platform.”

These days, McConnell appears to fall more in line with the arguments in favor of a more assertive Senate role, or at least in favor of a passive presidential one. Within hours of Scalia’s death on Feb. 13, McConnell asserted that the next president should fill the Supreme Court opening. On Tuesday, he said an Obama nominee wouldn’t even receive a hearing.

As the debate continues over which president should fill the Supreme Court vacancy and what the Senate should do, to whom should we listen? The Biden of 1992 or of 2016? The McConnell of 1970 or of 2016?

None of the above.

In terms of fundamental matters of democracy, the Constitution is the primary source of guidance — not the evolving statements of politicians who say one thing in one context and contradict themselves in another. The Constitution’s guidance in this situation is rather clear: The president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the supreme Court.”

What the Constitution leaves unsaid is what, exactly, the Senate’s exercise of “Advice and Consent” looks like. Perhaps, once Obama makes a nomination, “Advice and Consent” could be rigorous vetting followed by confirmation. Perhaps it could be rigorous vetting followed by borking. It should depend on the unique circumstance once that circumstance ceases to be a hypothetical.

Maine Sen. Susan Collins has been consistent on this issue since Scalia’s death, emphasizing the constitutional roles laid out for the president and the Senate. “[I]t’s clear that the president can send up a nominee — regardless of where he is before he leaves office,” Collins told CNN on Monday. “It is the duty of the Senate, under the Constitution, to give our advice and give our consent or withhold our consent. I believe we should follow the regular order and give careful consideration to any nominee that the president may send to the Senate.”

In terms of what we can expect, perhaps McConnell said it best in his 1970 law journal article.

“In summary, the inconsistent and sometimes unfair behavior of the Senate in the past and in the recent examples which follow do not lead one to be overly optimistic about its prospects for rendering equitable judgments about Supreme Court nominees in the future.”

 



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