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| The Roberts Court, November 30, 2018. Seated, from left to right: Justices Stephen G. Breyer and Clarence Thomas, Chief Justice John G. Roberts, Jr., and Justices Ruth Bader Ginsburg and Samuel A. Alito. Standing, from left to right: Justices Neil M. Gorsuch, Sonia Sotomayor, Elena Kagan, and Brett M. Kavanaugh. Photograph by Fred Schilling, Supreme Court Curator's Office. |
Over the weekend, Democrats argued that Republicans have a responsibility to wait for a nomination until after the election. They evoked what is commonly called “The Biden Rule.”
In 1992, the Senate had just voted to confirm Justice Clarence Thomas. The hearings were divisive and brutal. Then-Senator Joe Biden (D-DE) took to the Senate floor and said if a seat were to open on the court, then-President George H.W. Bush should wait until after the election for a nomination. Biden said the purpose was to allow the country to reevaluate the nomination and confirmation process. He said the political system had been overrun with bitterness, and healing needed to take place.
However, there are a few reasons why the “Biden Rule” doesn’t apply to this current situation:
1.There were no openings on the court when Biden made the comment.
2.It wasn’t a “rule,” it was a suggestion.
3.Unlike Obama, Trump isn’t a lame-duck president. He’s running for re-election.
4.Obama, a Democrat, was not in agreement on a selection with the Republican led-Senate. Trump and the Senate are incomplete political alignment.
5.The Constitution doesn’t say a president or the senate is only in power until the next election cycle starts. They serve full terms until the new Congress and presidents are sworn into office.
Would Democrats Wait?
If the shoe were on the other foot, would Democrats wait if there was a risk they couldn’t nominate a liberal justice in the mold of Ginsburg? Of course not. In 2016, Biden wrote in the New York Times that the Senate had a “Constitutional obligation” to vote on Obama’s nominee, Merrick Garland.
What changed? It’s not a Democrat’s nominee this time. That’s the only thing that changed.
History Not on Democrats Side
Throughout American history, three Supreme Court justices were nominated and confirmed within a 45-day window. One of them was Ginsburg. She was nominated by then-President Bill Clinton (D) and confirmed by a Democratic-led Senate.There is no reason for Senate Majority Leader Mitch McConnell (R-KY) not to call for the hearings to confirm a new Supreme Court Justice. There is a Republican Senate and a Republican president. Likewise, no rule in 2016 said the majority leader had to confirm the Democratic president’s nominee before a Republican-led senate.
Will the Nomination Hurt Democrats?
Rules and the Constitution aside, this is political theater. Will the nomination process help or hurt Trump or Biden?There’s a lot that can happen. If Trump nominates a woman of faith, as he’s expected to do, it could put Democrats on their heels. If they come out as strong as they did against Kavanaugh, it could backfire. If they make a slip-up and say something polarizing, it could help Trump and Republicans.
If they keep saying they will stack the Supreme Court with more seats and confirm lots of liberal justices, that could backfire on them as well. Pelosi is already on record saying impeachment is on the table again in order to stall the nomination process.
The political battles are just beginning. Democratic voters are dug in, and so are Republicans. The question is, how will the process impact the votes of independents or Democrats who feel the party is moving too far left and is abandoning them?
Stay tuned for analysis ahead of the nomination and confirmation process and what it could mean for the 2020 election.
Amy Coney Barrett receives endorsement from a very unlikely source: ‘Highly qualified to serve’
Harvard Law School professor Noah Feldman is a constitutional scholar and self-described liberal who testified during President Donald Trump’s impeachment hearings that Trump was guilty of “impeachable high crimes and misdemeanors by corruptly abusing the office of the presidency.”
But even Feldman believes Amy Coney Barrett deserves to be a Supreme Court justice.
What did Feldman say?
Writing in an essay for Bloomberg, Feldman said he was “devastated” by Ruth Bader Ginsburg’s death and “revolted by the hypocrisy of Senate Majority Leader Mitch McConnell.”
But, Feldman explained, his personal missives do not remove the fact that Barrett is “highly qualified” to serve on the Supreme Court.
“Yet these political judgments need to be distinguished from a separate question: what to think about Judge Amy Coney Barrett,” Feldman wrote. “And here I want to be extremely clear. Regardless of what you or I may think of the circumstances of this nomination, Barrett is highly qualified to serve on the Supreme Court.”
In fact, Feldman acknowledged that he disagrees with much of Barrett’s judicial philosophy — but even that fact does not disqualify her.
“I disagree with much of her judicial philosophy and expect to disagree with many, maybe even most of her future votes and opinions. Yet despite this disagreement, I know her to be a brilliant and conscientious lawyer who will analyze and decide cases in good faith, applying the jurisprudential principles to which she is committed. Those are the basic criteria for being a good justice. Barrett meets and exceeds them,” he explained.
Feldman went on to say:
[A] Republican is president, and the Senate is Republican. Elections have consequences, and so do justices’ decisions about when or whether to retire. Trump is almost certainly going to get his pick confirmed. Given that reality, it is better for the republic to have a principled, brilliant lawyer on the bench than a weaker candidate. That’s Barrett.
To add to her merits, Barrett is a sincere, lovely person. I never heard her utter a word that wasn’t thoughtful and kind — including in the heat of real disagreement about important subjects. She will be an ideal colleague. I don’t really believe in “judicial temperament,” because some of the greatest justices were irascible, difficult, and mercurial. But if you do believe in an ideal judicial temperament of calm and decorum, rest assured that Barrett has it.
“This combination of smart and nice will be scary for liberals,” he added.
Regarding Barrett’s devout Catholic faith, which some of those opposed to Barrett have claimed disqualifies her from serving on the Supreme Court, Feldman said Barrett’s critics could not be more wrong.
“Barrett is also a profoundly conservative thinker and a deeply committed Catholic. What of it? Constitutional interpretation draws on the full resources of the human mind. These beliefs should not be treated as disqualifying,” Feldman said. “We have a Supreme Court nominee who is a brilliant lawyer, a genuine and good person — and someone who holds views about how to interpret the law that I think is wrong and, in certain respects, misguided. I hope the senators at her hearing treat her with respect.”
In the end, Feldman wrote that Barrett’s likely confirmation is a consequence of Democrats losing elections.
“And when she is confirmed, I am going to accept it as the consequence of the constitutional rules we have and the choices we collectively and individually have made. And I’m going to be confident that Barrett is going to be a good justice, maybe even a great one — even if I disagree with her all the way,” Feldman wrote.
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