The Senate has voted to confirm Amy Coney Barrett as a Supreme Court Justice. She will be sworn in tonight, probably around the time I finish writing this post.
It’s remarkable to me how quickly Mitch McConnell was able to drive this nomination through. I’m also surprised that only one Republican Senator (the embattled Susan Collins) voted against confirming Judge Barrett.
President Trump is said by some to be a divisive influence within the Republican Party. Yet, GOP Senators and House members have been extraordinarily united during the past three and a half years.
During today’s proceedings, Chuck Schumer lashed out at Republicans for hypocrisy in judicial confirmations. He cited the case of Merrick Garland, whom President Obama nominated in 2016. Judge Garland wasn’t confirmed. The GOP controlled Senate didn’t even give him a hearing.
Maybe Garland should have received a hearing out of courtesy. However, the hearing would have been a waste of time. Garland did not have the votes to be confirmed.
Amy Coney Barrett has the votes. That’s the difference between these two election-year nominees.
Why is it, though, that these days Supreme Court nominees likely can’t get the votes needed for confirmation if the opposing party controls the Senate? The answer has lots to do with the efforts of Chuck Schumer.
Jonathan Adler provides the history:
Prior to [Shumer’s] arrival in the Senate, senators were generally reluctant to openly oppose judicial nominees on ideological grounds, but Schumer worked to change that. He enthusiastically supported a blockade of Bush appellate nominees and rejected President Bush’s appeal for a presumptive confirmation schedule.
Once Republicans retook the Senate, Schumer pushed for the repeated filibusters of President Bush’s nominees and, even after the “Gang of 14” deal, continued in his attempts to use this obstructionist tactic.
Schumer led an unsuccessful effort to filibuster confirmation of Justice Samuel Alito to the Supreme Court. Afterwards, in a 2007 speech to the American Constitution Society, he proclaimed he should have done even more to block Alito’s confirmation, and argued that the Senate should not confirm any additional Bush nominees to the Supreme Court should any more vacancies arise. In his view, senators should seek to prevent judicial confirmations that might tilt the balance of the Court in a way they do not like, including by simply refusing to confirm them – something he would conveniently forget in 2016.
Senator Schumer did not think both parties should have recourse to the same tools of obstruction, however. When Senate Republicans started filibustering some of President Obama’s appellate nominees he eagerly joined then-Senate Majority Leader Harry Reid’s decision to go nuclear, even though Republicans had (at that point) not blocked any more Obama nominees than Democrats had blocked Bush nominees (five each). No matter. The filibuster was gone, and three of Obama’s five blocked nominees were confirmed (all to the D.C. Circuit).
During the closed session, Senate majority leader Mitch McConnell (R., Ky.) rebuked Schumer for his short memory: “I hope our colleague from New York is happy with what he has built. I hope he is happy with where his ingenuity has gotten the Senate.” There is no question that McConnell upped the ante over the past four years. One might say he hit back twice as hard. Nonetheless, if Schumer is unhappy, he should consider his role in getting the Senate to this point.
Because of the power it exerts over our politics and our lives, and because Justices tend to divide along party lines in the big cases, the Supreme Court invites hypocrisy from both sides of the aisle over the manner in which nominees gain the ability to exert such awesome power. But with the possible exception of Joe Biden, there is no bigger hypocrite than Chuck Schumer when it comes to the confirmation process.