Democrats Should Hold To Their Own Standards

REUTERS/James Lawler Duggan

Michael Thielen Executive Director, Republican National Lawyers Association
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Today, Senators will begin to question Judge Gorsuch at his Supreme Court hearing.  We wonder if they will remember their own standards and the standards of those they profess to admire.  There are, at least, four standards that Democrats have previously applied to Supreme Court nominees.

Senate Democrats may try to depict the whole hearing is illegitimate as this is “Merrick Garland’s seat” and should be reserved for the person President Obama nominated in 2016.  That is fallacious for two fronts, both beckon back to the Schumer Standard.

First and foremost, the Senate was merely following the Schumer Standard.  In July 2007, current Minority Leader and then-Senator Chuck Schumer said if any new Supreme Court vacancies opened up, Democrats should not allow President Bush the chance to fill it “except in extraordinary circumstances,” as his term was almost over.  July 2007 was seven months sooner than Senate Leader Mitch McConnell invoked the Schumer Standard.  It should also be noted Leader McConnell used the Schumer Standard before Garland was even nominated.

Second, the Gorsuch hearing should have nothing to do with Judge Garland or his nomination.  The Garland Nomination in 2016 was not about his qualifications, but solely turned on the Senate process in an election year per the Schumer Standard.  This is a non-issue today.

Meanwhile, the next Democratic standard dates to the Reagan Era and was established when considering Antonin Scalia’s Supreme Court Nomination.  The Leahy Standard announced in 1986 by the longest-serving senator and former Judiciary Chairman Patrick Leahy says: “I think as members of the [Judiciary] Committee, we should respect the mandate the president has earned.  The president had told us in 1980 and 1984 he would appoint judges of his philosophy.  He was given a mandate to do that.  This Committee, if the nominees are otherwise qualified, should respect that.”

Judge Gorsuch more than satisfies both elements of the Leahy Standard.  President Trump went further than President Reagan by announcing a list of 21 potential judges that he would nominate during the 2016 campaign.  Gorsuch was on that list.  President Trump decisively won the Presidency. Therefore, it is clear that President Trump clearly has a mandate to nominate and confirm Gorsuch.

The 2016 Election served as a referendum by the American People on all three branches of government. Some 65% of registered voters stated that the Supreme Court Nomination was a very important factor leading up to their vote in November.  Twenty-one percent of voters said the Supreme Court was “the most important factor” in the 2016 election.

The second element of the Leahy Standard requires a nominee be “otherwise qualified.”  Fortunately, we do not have to guess what Senator Leahy meant in this case.  Senators Leahy and Schumer have been very clear in the later standard: the American Bar Association’s (ABA) assessment being the “gold standard” in evaluating federal judicial nominations.  Here, the ABA has given Judge Gorsuch its highest rating, unanimously well-qualified.  As such, Gorsuch easily meets these Standards established by the Democrats.

What if Neil Gorsuch fails to adequately testify at his confirmation?  Well — the reality is by the standards of the Democrats’ beloved Justice — Democrats simply cannot complain.  As liberal icon Justice Ruth Bader Ginsburg stated during her confirmation hearing to the Supreme Court, she could offer “no hints, no forecasts, no previews.”

Ironically, the Justice who Neil Gorsuch has been nominated to replace on the Supreme Court, Antonin Scalia, followed the Ginsberg Standard before it even earned its name.  For example, Justice Scalia commented on the case that the entire principal of Judicial Review for the Supreme Court is based, 1803’s Maybury v. Madison: “I do not think I should answer questions regarding any specific Supreme Court opinion, even one as fundamental” as Maybury.  The Senate was obviously perfectly fine with Scalia following the Ginsburg standard and was approved 98-0.

Senate rules state that a Supreme Court nomination must be forwarded to the entire Senate.  It seems clear that Judge Gorsuch already has the votes of all the Republican Senators and quite possibly the quiet support of some Democrats.  Despite revisionist history of Democrats saying Supreme Court nominations require 60 votes, a quarter of the current Supreme Court was confirmed with less than 60 votes (Justice Thomas with 52 votes and Justice Alito with 58 votes.)

However, if Senator Schumer insists on ignoring all his own side’s standards, Leader McConnell can use one last Democrat Standard, the Reid Standard.  Then-Senate Majority leader Harry Reid changed the procedure to requiring a simple majority of votes for all nominees, but Supreme Court nominees.  However, Reid made clear that was a mere formality, when he said last October:  “I really do believe that I have set the Senate so when I leave, we’re going to be able to get judges done with a majority,” he said. “It’s clear to me that if the Republicans try to filibuster another circuit court judge, but especially a Supreme Court justice, I’ve told ’em how and I’ve done it, not just talking about it. I did it in changing the rules of the Senate. It’ll have to be done again.”

So, the Reid Standard clears the way for the Republicans to confirm a Supreme Court nominee as always been done with a simple majority.  Senator Schumer responded to Reid’s comments by saying: “I hope we don’t get to that.”

The irony is if the Democrats don’t follow their own clear and articulated standards, Leader McConnell may be forced to make them follow their own former leader’s standards and impose the Reid Standard upon the Senate.