February 23, 2016
The Supreme Court of the United States can be a somber place -- but never more so than yesterday when the justices reconvened for the first time without the late Antonin Scalia. Absent its largest personality, the Court struggled to adjust to two weeks of oral arguments without its longest-serving member. Black drapery still hangs over Scalia's empty chair, which is now the focal point -- not just of the room -- but of a fierce battle over the nomination process.
After a brief pause for one of the most monumental funerals in recent memory, Washington is back at it, debating what will be done -- or not done -- about Scalia's replacement. The president is welcome to submit a nomination, Republicans have said. Just as the Senate is free to reject it. After all, as Judiciary Chairman Chuck Grassley (R-Iowa) pointed out, that was then-Senator Joe Biden's view all the way back in 1992. He, too, was chairman of the Senate Judiciary Committee -- and, in that job, it seems he had a surprising amount in common with the current GOP leadership.
"This chairman's guidance is particularly instructive," Senator Grassley said Monday on the Senate floor, "because he delivered his remarks in a presidential election year, during a time of divided government. The... year was 1992. We had no Supreme Court vacancy. 'It is my view,'" Biden argued, "'that if a Supreme Court justice resigns tomorrow, or within the next several weeks... President Bush should consider following the practice of a majority of his predecessors and not -- and not -- name a nominee until after the November election is completed. ... Once the political season is underway, and it is, action on a Supreme Court nomination must be put off until after the election campaign is over.'"
Funny how things change with the transfer of power. Now, suddenly, Biden is arguing that his own comments weren't an "accurate description" of his views! Exactly what is inaccurate about them? That they weren't made when Democrats were in the minority? "Senate consideration of a nominee under these [election year] circumstances," Biden could not have been clearer, "is not fair to the president, to the nominee, or to the Senate itself." Let's face it: Democrats aren't fighting Republicans on these points -- they're fighting themselves. Unfortunately for them, these elastic principles are also haunting President Obama, Minority Leader Harry Reid (D-Nev.), and Senator Chuck Schumer (D-N.Y.) -- all of whom are on the record opposing a Supreme Court appointment (some well before an election year!).
"Nowhere in [the Constitution]," Senator Reid insisted in 2005, "does it say the Senate has a duty to give presidential appointees a vote. It says appointments shall be made with the advice and consent of the Senate. That is very different than saying every nominee receives a vote." Then-Senator Obama even fought the Supreme Court nominee of the president who had just been elected! "There are some who believe that the president, having won the election, should have complete authority to appoint his nominee ... [and] there should be no further question as to whether the judge should be confirmed. I disagree with this view."
He "regrets" his opposition now, White House Press Secretary Josh Earnest said last week. I'm sure he does -- but only because what was politically expedient then is politically damaging now. Perhaps Chuck Schumer summed up the liberal ethos best when he declared yesterday, "It doesn't matter what anybody said in the past." Especially if they're politicians looking for a convenient way to flex their views.
Tony Perkins' Washington Update is written with the aid of FRC senior writers.