As President Trump ponders his next pick for Supreme Court Justice, Senate Democrats are determined to derail any nominee he chooses to replace retiring Justice Anthony Kennedy.
The GOP Senate majority is already a razor-thin 51-49(47 Democrats and 2 independents who caucus with them). Hence, the Democrats’ strategy is twofold: first, to delay any Senate confirmation vote on any Trump SCOTUS nominee until after the November mid-term elections. This goal rests on the hope Democrats will regain their Senate majority, and hold the balance of power to block Trump’s pick, if they can stonewall the vote until the new Senate convenes in January 2019.
Senate Minority Leader Charles Schumer, Senate Judiciary Committee Ranking member Dianne Feinstein and other left-leaning Senate Democrats are arguing “Republicans set a new standard” in 2016 that the Senate should never consider any Supreme Court nominee in any election year. Their argument is flawed because 2016 was a presidential election year and 2018 is a mid-term election year.
In 2016, the Senate followed the earlier counsel of former Senate Judiciary Committee Chairman Joe Biden. On June 25, 1992, Biden asserted that, if a Supreme Court vacancy occurred, the “Senate Judiciary Committee should seriously consider not scheduling confirmation hearings on the nomination until after the political campaign season is over.”
Using the same logic, Biden also refused to hold hearings for “more than 50 of George H.W. Bush’s judicial nominees. So, what made sense in 1992, a presidential election year, also made sense in 2016, another presidential election year. Not so in 2018.
Meanwhile, the second prong of the Democrats’ strategy is to rally their Senate ranks in unified opposition to Trump’s pick, regardless of credentials, before they even know who he or she is. It, too, is flawed because the Constitution grants the president, not the Senate, the power to nominate and appoint justices to the Supreme Court. Sure, the Senate has an “Advice and Consent” role to play, as intended by the Constitution, to be a check on the president’s appointment power. However, it was never meant to be a separate or sole Senate power to pick judges on its own. The president’s power is to appoint only those nominees who have received the Senate’s consent. Thus, he has no power, explicit or implicit, to appoint any nominee not confirmed by the Senate. For example, in 1969, 1970, and 1987, the Senate defeated the Supreme Court nominations of, respectively, Clement Haynsworth, G. Harrold Carswell, and Robert Bork.
Finally, the so-called “standard” that Schumer, Feinstein, and other Democrats are touting to oppose Trump’s nominee “that the Senate should never confirm any Supreme Court nominee in any election year” is actually the new one, devised by Democrats, not Republicans.
Retired Army Col. Thomas B.Vaughn can be reached at email@example.com.