This is the third installment of my mini-three part series on how our hypocrisy is not like theirs. In the last two installments we had reviewed:
- How the Republican’s flatly refused to cooperate with Obama after his 2008 election on anything that he proposed, including the Affordable Care Act, which passed without any Republican votes (notwithstanding that it had originally been their idea).
- How the Republicans voted in 2010 against their own resolution for a bipartisan Deficit Reduction Task Force, just because President Obama had endorsed the idea.
Now we’re going to look at the current and most active hypocrisy, the Republican’s refusal to even consider a Supreme Court nomination in the wake of the untimely death of Justice Antonin Scalia. Republicans are, of course, horrified that the idea that the stalwart Scalia could be replaced by a moderate or liberal justice – just as happened to our side when civil rights pioneer Thurgood Marshall was replaced by the hypocritical sex harasser and ethically challenged Clarence Thomas.
Now the Republicans have dusted off all kinds of arguments and theories in support of their refusal, as if it was somehow in keeping with longstanding Senate traditions, instead of a radical departure from previous practice with respect to Supreme Court appointments. In support of their arguments, the Republicans have trotted out:
- The Thurman rule;
- The Biden rule;
- The fact that very few Supreme Court Justices have been appointed in the last year of a President’s term.
The Thurmond Rule
The Thurmond Rule is not actually a “rule” of the Senate, but the articulation of a tradition having to do with the Senate generally not confirming justices in the last six months of a President’s term. It is named after former South Carolina Senator and legendary anti-civil-rights advocate Strom Thurmond, and was coined as a consequence of his opposition to President Lyndon Johnson’s nomination of Justice Abe Fortas to be Chief Justice of the Supreme Court in June of 1968. Thurmond advocated at the time that “no lifetime judicial appointments should move in the last six months or so of a lame-duck presidency.” Historically, the rule has been inconsistently applied when it is applied at all.
Republicans will relish the fact that certain Senators, including Senator Patrick Leahy of Vermont – who has at times been the chair of the Senate Judiciary Committee when the Democrats have been in the majority – have at time advocated both for or against the Thurmond Rule depending on which party the currently sitting President belongs to. This is part of the small hypocrisies committed on both sides of the aisle, of which Democrats have also been guilty of. But again, not to the same extremes as the current Republicans. It should be noted about the Thurmond Rule that:
- It is not a formal rule of the Senate;
- It has been inconsistently applied, when it is applied at all;
- It only pertains to the last six months of a lame duck presidency, not to the entire last year.
The Biden Rule
There actually is no “Biden Rule” – the reference is to a speech that Joe Biden made in 1992 while the Chairman of the Senate Judiciary Committee. Biden’s remarks were part of a long speech about revising the Supreme Court confirmation process after a tumultuous five-year period that had featured three bitterly contested nominees: William Rehnquist, Robert Bork and Clarence Thomas. Speaking in June, around the time that the Supreme Court traditionally ends its session, and during the last months of George H.W. Bush’s presidency. At that time Biden did say that Bush should “not name a nominee until after the November election is completed,” and if he did, “the Senate Judiciary Committee should seriously consider not scheduling confirmation hearings on the nomination until after the political campaign season is over.”
Now, on the surface it appears that what Biden said is very similar to the positions that the Senate Republicans are currently taking, except there are two notable differences: first, his remarks were delivered in June, not February, and for the most part they simply reiterate the Thurman rule (see above); second, Biden did not say that his committee would refuse to hear a nominee, just that they might “seriously consider” postponing the hearings; and finally, the remarks were hypothetical, since there was no opening at the time on the Supreme Court. Still, Biden probably regrets saying it, just as President Obama probably regrets voting for the filibuster against Samuel Alito back when that came before the Senate.
Late Term Supreme Court Appointments
Republicans have made a big deal of the fact that there have been very Supreme Court appointments made in the last year of a President’s term. Which is true. But not because there has been some agreement not to act on these appointments. That is false.
There are two ways that Supreme Court tenure can end: death or resignation. Remarkably enough, most Supreme Court Justices – unlike Antonin Scalia – have had enough sense to resign before they are carted out of the high court building feet first. And most Supreme Court justices have chosen not to resign in the last year of a Presidential term for the precise reason that they know that it will create a political firestorm.
The Appointment of Justice Anthony Kennedy
The last Supreme Court Justice to be approved in the last year of a President’s term was the still serving justice Anthony Kennedy. The situation at that time was the opposite of the current situation: a Republican President (Ronald Reagan) in the last year of his eight year run as President, and a Senate in the hands of the opposition party (the Democrats). Now, Kennedy was nominated in November of 1987 and was confirmed in February of 1988, in the last year of Ronald Reagan’s lame duck presidency. So, while this scenario is not identical to the current situation, it is very substantially similar. And the Democrats all vote unanimously to help confirm the appointment of Anthony Kennedy.
Factcheck and Politifact
It’s not just me or fellow partisans who are calling out the Republican Senate on their immense hypocrisy. It is also the politically neutral Factcheck and Politifact websites, the two sites one seeks out in order to examine the veracity of competing political claims. Factcheck says that “Paul Ryan [is] wrong in saying there is precedent for not nominating a justice in a presidential campaign,” and Politifact says that “Cruz, Rubio Twist Court ‘Precedent’” in claiming that there is “a long tradition” and historical “precedent” for presidents not to fill a Supreme Court vacancy in their last year in office or during an election year.
Despite what Republican apologists would like you to believe, there is no historical rule that says that a President should not nominate and the Senate should not confirm a Supreme Court nominee in the last year of a President’s term. While the Senate has generally not confirmed judicial nominees in the last six months of a term, that practice is more of an informal tradition than a formal rule. These guys, the current Senate, just cannot stomach the notion that their beloved guy – Scalia – would be replaced by someone moderate or liberal, so that they would finally lose the balance of power in the court. Their concern is only about power, not about justice.