Dems Were for Midterm SCOTUS Appointments Before They Weren’t

Senate Minority Leader Chuck Schumer and others backed President Obama's nominating Elena Kagan during the 2010 election campaign

Senate Democrats were all for midterm election year Supreme Court nominations until President Donald Trump got the opportunity Wednesday to appoint retiring Justice Anthony Kennedy’s replacement.

“Our Republican colleagues in the Senate should follow the rule they set in 2016 not to consider a Supreme Court justice in an election year,” Senate Minority Leader Chuck Schumer (D-N.Y.) said Wednesday on the Senate floor.

“Senator McConnell will tell anyone who listened that the Senate had the right to advise and consent, and that was every bit as important as the president’s right to nominate,” he said.

“Millions of people are just months away from determining the senators who should vote to confirm or reject a president’s nominee, and their voices deserve to be heard now as leader McConnell thought they should deserve to be heard then,” Schumer added. “Anything but that would be the absolute height of hypocrisy.”

But Schumer and other Democratic senators sang a totally different tune when former President Barack Obama nominated Solicitor General Elena Kagan to replace retiring Justice John Paul Stevens during the 2010 midterm election campaign, which saw the Tea Party revolt toss out the Democrat majority in the Senate and House and replace it with Republican control.

“Elena Kagan is the kind of moderate, experienced legal leader who can and should receive bipartisan support in the Senate,” Schumer told the New York Daily News in May 2010. “There is no reason why her confirmation should not be completed before the August recess.”

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But Democratic lawmakers and liberals erupted in near-apocalyptic hysterics after Kennedy announced his intention of retiring on July 31, thus giving Trump the opportunity to cement a conservative trajectory for the nation’s highest court.

Trump’s nomination of Justice Neil Gorsuch occurred not long after he took office in 2017. And now Senate Democrats hope to stall Trump’s nominee until they have the chance to retake the Senate majority in November.

“If the Senate’s constitutional duty to advise and consent is just as important as the President’s right to nominate, as Leader McConnell also reminded us, why should a midterm election be any less important than a presidential election?” Schumer tweeted Thursday.

“If GOP were consistent, they would wait to consider Justice Kennedy’s successor until after the midterm elections. Time & again Ldr McConnell claimed the American ppl should have a voice in deciding the next SCOTUS Justice. That was in Feb of an election year. It’s almost July,” he added.

Democrats still harbor bitterness over Senate Majority Leader Mitch McConnell’s (R-Ky.) decision to block the confirmation process for Obama’s final nominee, Merrick Garland, the chief judge of the U.S. Court of Appeals for the District of Columbia Circuit. Obama nominated Garland during the 2016 presidential election year after Justice Antonin Scalia unexpectedly died in February.

Democratic senators’ filibuster against Gorsuch’s confirmation process in 2017 led McConnell to invoke the “nuclear option,” requiring only a simple majority to confirm the nominee instead of the long-standing supermajority of 60 votes. The Senate voted 54–45 to confirm Gorsuch with three Democrats joining the Republicans in support of the nominee.

Related: Dems Have ‘No Ammunition Left,’ Only ‘Lots of Noise’ on Kennedy Exit

McConnell pointed Wednesday to the Democratic Senate majority’s 2013 precedent when then-Senate Majority Leader Harry Reid (D-Nev.) changed Senate rules to allow for a simple majority in confirming Obama’s nominees. McConnell extended that line of reasoning to Supreme Court nominations.

McConnell warned Senate Democrats against invoking the nuclear option in 2013 during a speech on the Senate floor, saying, “If you want to play games and set yet another precedent that you’ll no doubt come to regret, I say to my friends on the other side of the aisle you’ll regret this, and you may regret it sooner than you might think.”

Now Democrats are attempting to pin hypocrisy on McConnell in 2018 for pushing through Trump’s second Supreme Court nominee during a midterm election year when they had no qualms about midterm appointments with Kagan in 2010.

PoliZette writer Kathryn Blackhurst can be reached at [email protected]. Follow her on Twitter.

(photo credit, homepage image: Elena Kagan, CC BY 2.0 by Matthew W. Hutchins, Harvard Law Record; photo credit, article image: KaganCC BY 2.0 by Harvard Law Record)

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