Republicans’ Apples to Oranges Comparison on Supreme Court Nominees

Over the last couple of days, some Republicans, embarrassed by their partisan overreach in attempting to prevent the President from nominating a Supreme Court justice, have tried to use a 2007 speech I gave to justify their current obstruction. Sadly for them, even a quick perusal of the speech shows it provides no cover and that Leader McConnell is comparing apples to oranges.

What I said in the speech given in 2007 is simple: Democrats, after a hearing, should entertain voting no if the nominee is out of the mainstream and tries to cover that fact up. There was no hint anywhere in the speech that there shouldn’t be hearings or a vote. Only that if after hearings and a vote, Democrats determined that the nominee was out of the mainstream and trying to hide it, they should have no qualms about voting no. Nor was there any hint that this idea that Democrats should oppose hard right ideologues should apply only in the fourth year of the president’s term. In fact, I said it should apply to this president, George W. Bush, or any future president whenever they nominated such a candidate.

In sum, my argument was based on hard right ideologues who did not follow precedent being approved to the court‎;‎ not on a president’s right to nominate, but on the Senate’s right to advise and consent once a full confirmation process, as outlined in the Constitution, was undertaken by the Senate.

Let me provide a little historical context. During President Bush’s term, Democrats had voted for Justice Roberts and allowed Justice Alito to go through — both of whom said they would, as Justice Roberts said, be umpires calling balls and strikes. Once they got on the court they immediately started moving the court in an ideological direction, and they have continued to do so. Decisions that dramatically deviated from precedent and pulled America in a strongly rightward direction, handed down with a 5–4 majority, became the hallmark of this court. Years later, it’s clear these justices have done exactly what they said they wouldn’t do: create an activist court. Under Chief Justice Roberts, the court has deviated from strongly held precedents on campaign finance issues, voting rights, choice, unions, environmental regulations, and many others.

Every single senator has a right to vote no on any given nominee. I’ve opposed some nominees who are out of the mainstream, my friends on the other side of the aisle have opposed some nominees they believe are out of the mainstream, and this pattern may well continue. But the wisdom of the Founding Fathers dictates that we should go through a full vetting and confirmation process so that we and the nation can determine whether these candidates are out of the mainstream even in this ideological era. Republicans are attempting to shirk their duty in a way that would be simply unprecedented in our nation’s history.

Everything I said in 2007 holds true today: It is the Senate’s duty to hold hearings and vote on the nominee based on the merits. And it is fair to evaluate a nominee based on his or her record.

I believe in this case the President will nominate a mainstream candidate who can and should earn bipartisan support. But whether Republicans agree or not with my evaluation of whichever candidate the president puts forward, they have a constitutional obligation to hold hearings, conduct a full confirmation process, and vote on the nominee based on his or her merits. That’s what I said then, that’s what I believe now, and that’s what I hope happens in the months ahead.

In short, Senator McConnell’s attempt to justify his unprecedented obstruction with my speech is completely misleading and patently false.

If you want to revisit the 2007 speech, click here.