Political Editors / March 2, 2022

In Brief: Dems’ Never-Ending Supreme Court Hypocrisy

Republicans owe Joe Biden nothing given his own history in destroying the confirmation process.

You may have noticed news headlines about how everyone expects relatively quiet and non-contentious hearings for Joe Biden’s Black Female™ Supreme Court nominee Ketanji Brown Jackson. Senate Majority Leader Chuck Schumer promised the kind of “fair, timely, and expeditious” confirmation process that Democrats routinely deny to Republican nominees. Ask Brett Kavanaugh how “fair” his hearing was.

Veteran political analyst David Harsanyi ably calls out Democrats’ hypocrisy:

The chairman of the Senate Judiciary Committee, Dick Durbin, told CNN’s State of the Union that he has “reached out to many Republicans, asking them to keep an open mind and to meet with Ketanji Brown Jackson, ask the hard questions, ask for materials — we’ll provide them. It’s in the best interest … of the U.S. Senate for this to be bipartisan.”

Is it? In October 2020, Durbin announced that he would be a “no” on Amy Coney Barrett before asking her a single “hard question” or requesting any “materials,” as did a bunch of other Democrats. Did Durbin have an open mind on Barrett? Or Brett Kavanaugh? Then-minority leader Chuck Schumer, as well as members of the Judiciary Committee such as Richard Blumenthal and Mazie Hirono — who not only spread fake rape allegations about Kavanaugh but argued that the nominee didn’t deserve the presumption of innocence — refused to even meet with Barrett. Schumer claimed that the Barrett nomination would “go down as one of the darkest days in the 231-year history of the United States Senate.” Was that in the best interest of a bipartisan Senate?

When it comes to Supreme Court nominations, Democrats are under the impression that they have the right to dictate the terms of hearings, and nominees always conveniently aligning with their political aims, whether they win or lose elections.

In 1987, Democrats led by Joe Biden treated Robert Bork so badly that the charade became a verb — “borking” — and a template for Democrats going forward. Another template, Harsanyi says, is one of “legitimacy,” which the Democrats invented after Mitch McConnell and the Republicans refused to consider Merrick Garland’s nomination by invoking the “Biden rule”:

Democrats came up with the “Schumer rule,” which, broadly speaking, maintains that any Republican nominee to the Supreme Court is “illegitimate” by his or her mere existence, while the Democrats’ nominee deserves a respectful hearing and a yea vote for the same reason.

What McConnell should have pointed out is that Barack Obama had already appointed two Constitution-busting justices to the Court, and Republicans had a duty to do everything within their legal power to stop him from doing it again. No one, as far as I can recall, said Garland was an illegitimate pick. No one dug up his video-rental history. No one leaked the story of a discredited witness to smear him. No one concocted accusations of sexual assault to destroy his reputation.

By the time Biden invented his rule, he’d already helped turn Senate Judiciary Committee hearings into nasty, hyper-politicized, disgraceful show trials that set the precedent for the Brett Kavanaugh hearings. … Republicans owe Biden nothing.

Harsanyi recalls another incident of gross politicization from Democrats:

In 2003, Democrats killed the nomination of Miguel Estrada, a Honduran immigrant. It was the first time in history that a filibuster was used to stop an appeals-court nomination. Democrats opposed Estrada because he was a talented Hispanic appointee with tremendous potential. We know this because in leaked memos from Dick Durbin’s office, they identify Estrada “as especially dangerous, because he has a minimal paper trail, he is Latino, and the White House seems to be grooming him for a Supreme Court appointment.” By 2013, Harry Reid, with the help of Durbin, would kill the judicial filibuster when it suited their purposes. Democrats keep escalating the judicial-nomination battles and then demand that the other side unilaterally disarm.

He concludes:

There is no duty to “bipartisanship” when it comes to nominations, only an adherence to the process. The Senate is a political body. The nomination process is a political one. Republicans should give Jackson a respectful, fair hearing, not because Durbin demands it, but because it’s the decent republican thing to do — and then vote against her, as she will almost surely be another justice who undermines the rule of law.

National Review subscribers can read the whole thing here.

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