The Washington PostDemocracy Dies in Darkness

For the record: Supreme Court nominees considered in ‘election years’

Democrats are charging hypocrisy by Republicans on considering nominations in election years. But that's just spin. (Video: Meg Kelly/The Washington Post)

There’s nothing like Supreme Court nomination to get the political spin going at full speed. In 2016, The Fact Checker awarded a bushel of flip-flops to lawmakers, Democrat and Republican, who conveniently changed their position on Supreme Court nominations depending on who was in power at the time.

Already Democrats are charging Republicans with hypocrisy for pressing ahead with a vote on Justice Anthony M. Kennedy’s replacement before the midterm elections take place. Here’s a statement by Senate Minority Leader Charles E. Schumer on June 27, decrying the absolute height of hypocrisy by Republicans:

“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. Senator [Mitch] McConnell would 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. Millions of people are just months away from determining the Senators who should vote to confirm or reject the president’s nominee. And their voices deserve to be heard now, as Leader McConnell thought they should deserved to be heard then. Anything but that would be the absolute height of hypocrisy. People from all across America should realize that their rights and opportunities are threatened. Americans should make their voices heard loudly, clearly and consistently. Americans should make it clear that they will not tolerate a nominee chosen from President Trump’s pre-ordained list, selected by powerful special interests, who will reverse the progress we’ve made over the decades.”

But here’s the rub: the Republican position, whether you disagreed with it or not, clearly was based on the fact that it was a presidential election year.

Here’s Senate Majority Leader Mitch McConnell on ABC’s “This Week” on March 20, 2016:

“The American people are in the middle of choosing who the next president is going to be. And that next president ought to have this appointment, which will affect the Supreme Court, for probably a quarter of a century.”

Note the reference to the presidential election — not just any election.

McConnell cited the so-called “Biden rule,” which referred to a June 25, 1992, speech that then-Sen. Joe Biden (D-Del.) gave on the Senate floor. Biden, in the speech, made it clear he was talking about nominations in a presidential year.

“Can our Supreme Court nomination and confirmation processes, so racked by discord and bitterness, be repaired in a Presidential election year? History teaches us that this is extremely unlikely. Some of our Nation’s most bitter and heated confirmation fights have come in Presidential election years. The bruising confirmation fight over Roger Taney’s nomination in 1836; the Senate’s refusal to confirm four nominations by President Tyler in 1844; the single vote rejections of nominees Badger and Black by lameduck Presidents Fillmore and Buchanan, in the mid-19th century; and the narrow approvals of Justices Lamar and Fuller in 1888 are just some examples of these fights in the 19th century.”

Biden, of course, later rejected the idea that he was opposed to going forward with all Supreme Court nominations; he insisted he was only opposed to an “extreme candidate” without proper consultation with the Senate. “I made it absolutely clear that I would go forward with the confirmation process, as chairman — even a few months before a presidential election — if the nominee were chosen with the advice, and not merely the consent, of the Senate — just as the Constitution requires,” he said in 2016. “There is no Biden rule. It doesn’t exist.”

Interestingly, there was supposedly a “Thurmond rule,” named after the late Sen. Strom Thurmond (R-S.C.), that work should halt on judicial nominations at some point during a presidential election year. But after Biden made his speech, Thurmond rejected the idea of not considering a Supreme Court nominee in a presidential election year. So even Thurmond apparently did not believe in the Thurmond rule.

But in any case, the so-called Thurmond rule also referred to presidential-election years.

Schumer, in mid-2007, even suggested that because Democrats were “hoodwinked” by the confirmation testimony of Chief Justice John Roberts and Justice Samuel Alito, no more nominees should be confirmed for the balance of George W. Bush’s term, even though he had 18 months left. The point was that it was the end of a presidency:

“For the rest of this President’s term and if there is another Republican elected with the same selection criteria let me say this: We should reverse the presumption of confirmation. The Supreme Court is dangerously out of balance. We cannot afford to see Justice Stevens replaced by another Roberts; or Justice Ginsburg by another Alito. Given the track record of this President and the experience of obfuscation at the hearings, with respect to the Supreme Court, at least: I will recommend to my colleagues that we should not confirm a Supreme Court nominee EXCEPT in extraordinary circumstances.”

Bottom line: it’s pretty clear the debate in 2016 revolved around nominations made in a presidential election year. Democrats are simply spinning a false narrative.

(In response to our query, a Schumer spokesman supplied a number of statements from Republicans in 2016 in which they vaguely referred to nominations in an “election year,” rather than a presidential election year.)

(About our rating scale)

Send us facts to check by filling out this form

Keep tabs on Trump’s promises with our Trump Promise Tracker

Sign up for The Fact Checker weekly newsletter

Share the Facts
Washington Post rating logo Washington Post Rating:
Spinning the facts
"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."
in a Senate floor speech
Wednesday, June 27, 2018