Analysis: Schumer's SCOTUS Talking Points Are Bogus and Hypocritical -- and Should Be Ignored

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Posted: Jun 29, 2018 4:01 PM
Analysis: Schumer's SCOTUS Talking Points Are Bogus and Hypocritical -- and Should Be Ignored

As the pitched political battle over the fresh Supreme Court vacancy starts to take shape, Senate Democrats are reduced to employing weak, desperate talking points as they attempt to pressure President Trump and Republicans over the type of jurist who should be selected to replace Justice Kennedy -- and the timing of that confirmation process.  Former Vice President Joe Biden is calling for a 'consensus' pick, which is basically code for a non-conservative nominee.  It's the sort of thing Democrats always try to insist upon when the other side is doing the picking.  

One could argue that Merrick Garland, President Obama's failed 2016 selection, somewhat fit that bill.  He had a reputation as a moderate-ish left-of-center judge, and was old enough that his rulings wouldn't necessarily have shaped American jurisprudence for a generation. But consider two other factors: First, Obama was up against a Republican Senate when he tapped Garland, during a heated election year.  A non-radical centrist-leaning appointment was Obama's only chance of getting someone through.  Second, and more importantly, Garland would have pulled the Court substantially to the left because he was slated to supplant conservative icon Antonin Scalia.  Democrats are more than happy to profoundly alter the ideological makeup of the Court when it benefits their worldview.  But when the shoe is on the other foot, we are treated to dramatic appeals for "balance" and "consensus."  President Trump should disregard this unserious guidance and select the strongest and best-qualified (confirmable) constitutional conservative available.  His list is quite good, as is his reported short list.  

Then there's the point Chuck Schumer and others keep making about pushing the nomination off until after the election.  His argument, which is something close to pure trolling, is that because Mitch McConnell and Senate Republicans insisted on waiting to see who won the 2016 campaign before considering a SCOTUS nominee, the same standard or 'principle' should be applied to the current midterm cycle; after all, shouldn't the people get to decide what sort of Senate gets to provide advice and consent on this matter?


Fact-checkers have already flayed this specious contention as the misleading jumble that it is.  I also responded to similar "hypocrisy" charges on Twitter:


The first point refers to a clear difference between the type of election we're discussing, but I'm not sure if that really matters, for reasons I'll explain later.  The second is a reference to the very relevant history of senior Democrats advocating that the 'Garland treatment' be applied to potential Supreme Court nominees...from Republican presidents.  Then-Senator Joe Biden did so in 1992, and Schumer himself did so in 2007, before the election year had even started.  Mitch McConnell embraced the Biden and Schumer standard, secure in the conviction that Democrats would absolutely have done the same thing if the roles were reversed.  They'd signaled that explicit intention in the past, and their long track record of unilateral escalations on judicial confirmations is highly important context.  They've been playing increasingly tough hardball for decades.  

The third point is the most relevant precedent on the fake 'issue' Democrats are raising.  President Obama got his second Supreme Court justice confirmed (fairly easily) in the late summer of a midterm election year, mere months before his party got decimated at the polls.  McConnell has also noted that the previous Democratic president was afforded the exact same courtesy in 1994.  Bill Clinton picked Justice Breyer during that midterm cycle, the leftist judge was confirmed with 87 votes -- and months later, Republicans won a blowout victory, flipping control of both houses.  In other words, based on the treatment of both Clinton and Obama, Trump's forthcoming nominee should be confirmed rather effortlessly.  Liberals will argue that the rules have changed due to Republicans' disgraceful treatment of Merrick Garland, which they claim was tantamount to "stealing" a seat on the bench (for an in-depth account of the precedent and history of failed SCOTUS nominees, read this).  Conservatives will rightly laugh at the latter accusation (citing the Biden/Schumer rule), and correctly explain that McConnell's 2016 blockade was richly-deserved retaliation for years of outrageous and partisan Democratic abuses and power grabs, exemplified by the tactics of former Senate leader Harry Reid.  The Right has the much better argument.

But here's some straight talk: Both parties' posturing and claims on this subject are a collection of self-interested, expedient nonsense.  Democrats don't have a leg to stand on, having remorselessly and calculatingly pursued their ideological interests in these high-stakes skirmishes for years -- and conducting themselves with especially shameless ruthlessness during the George W. Bush and Obama presidencies.  Any claims of victimhood, or caterwauling about "norms," from them is astoundingly hypocritical.  But let's not pretend that McConnell is laying out some sort of principled standard here.  Notice that in his remarks, he gives himself some wiggle room to consider a Trump nominee in 2020, because that would not be the end of Trump's second term, or something.  At its core, this is a meaningless distinction.  

As I alluded to above, these points and 'rules' being raised are being marshaled almost entirely for fleeting convenience.  They're temporary window-dressing to defend a current course of action, based on current political concerns.  McConnell has to put on a show, I suppose, because the public probably wouldn't love the unvarnished truth.  If it were more politically permissible to just tell it like it really is, he'd say this: "Democrats have used and abused judicial confirmation battles for their own ideological and partisan ends for years, adopting an ends-justify-the-means attitude to justify all sorts of raw power grabs. Republicans' unilateral surrender is officially over.  We are responding in-kind, and intend to continue doing so."

Parting thought: Is there any chance for a de-escalation?  Ideally, I'd like to think that once both parties have been badly burned by the nasty fights and scorched-earth tactics of the last 15 years, they'd come together and negotiate a mutual climb-down. Is there any chance of that happening?  Let me put it this way: At the very very next opportunity to screw over Republicans on this issue, the Democratic base is going to insist on revenge for Garland.  They'll probably get it.  Meanwhile, even a pro-compromise conservative like myself would oppose the GOP making the first concession toward a reconciliation.  Democrats are primarily responsible for breaking this system, so it's incumbent on them to go first in exhibiting good faith toward making things right.  Do these cross-pressures answer my question above?  I'm afraid they do.