In 2007, Senator Chuck Schumer (D-NY) made a now-infamous statement to the left-leaning America Constitution Society, vowing to “recommend to my colleagues that we should not confirm a Supreme Court nominee except in extraordinary circumstances” for the rest of former President George W. Bush’s last term. Senator Schumer then went on to qualify that any nominee “must prove by actions—not words—that they are in the mainstream.” In light of the post left open by the late Antonin Scalia on the High Court, Schumer’s remarks have become political fodder in the increasingly tense debate between Democrats and Republicans as to go about filling the open seat. While Schumer and Democrats alike now maintain it is President Obama’s duty to appoint a qualified candidate speedily, Republicans have emphatically disagreed.
Just hours after Scalia’s death last Saturday, Senate leader Senator Mitch McConnell (R-KY) declared a Schumer-like message via Twitter: “this vacancy should not be filled until we have a new President.” Pundits have been quick to point out the hypocrisies of the high profile politicians, revealing that both Senators have seemed to flip-flop on this particular issue from year to year. So who’s right? How political should a Senate be in rejecting a Supreme Court nominee?
For sake of argument, I’ll identify four categories of historically plausible objections to Supreme Court nominees: character objections, incompetency objections, ideological objections and obstructional objections. Douglas H. Ginsburg is the classic ‘character objection’ example—the cannabis-smoking judge nominated by Reagan (gasp!) in 1987 who withdrew after a story broke of his toking days as a Harvard law professor. Then there’s G. Harrold Carswell, the 1970 Nixon nominee who was rejected by the Senate both for his mediocrity and for his overtly racist beliefs, which included the damning evidence of his “vigorous belief in the principles of white supremacy.” I’d classify these reasons as incompetency and ideological objections. That leaves us with Chuck Schumer and good ‘ol Mitch McConnell. Many pundits seem to conflate their views into one, accusing them both of trying to obstruct the appointing process, but I disagree.
For one, while both senators’ remarks were undoubtedly driven by partisan motives, Schumer didn’t propose a blanket dismissal of any possible appointee. It is reasonable to believe he would have at least considered a credible candidate, and he has since said so. McConnell’s statement, on the other hand, leaves no reason for Obama to even try to pitch a potential justice. Secondly, and more importantly, given the entire GOP’s tactical strategy against Obama the last seven years, McConnell’s rhetoric falls squarely within their ‘anti-Obama’ playbook. In other words, it doesn’t matter who Obama appoints—McConnell will plan to shut Obama down just to spite him. This obstructional objection is harmful in this hyper-partisan era of American politics; much more so than an objection rooted in ideology. The Democrats executed no such plan during the George W. Bush era, making Schumer an ‘anti-Bush’ interloper at worst.
So here’s the takeaway: as bitter criticisms continue to fly back and forth across the aisle these next few months, many Republicans will try to expose Schumer and others as hypocrites to claim their own tactics as politics per usual. But they’re not; they’re a deliberate obstruction of Constitutional governance. Opposing a justice on substantive grounds is one thing, but opposing a President’s duty to appoint one at all is quite another.
Terlep is a political science major from Naperville, Illinois.