Ever since Senate Majority Leader Mitch McConnell (R-Ky.) declared Saturday that the Senate shouldn't consider a replacement for the late Associate Justice Antonin Scalia until a new president is sworn in, there has been lots of foul-crying.
Democrats cry foul because the GOP is conveniently shutting the door to any President Obama nominee with 11 months still left in his presidency. And Republicans cry foul because they see hypocrisy, given these same Democrats, in a previous administration (read: a Republican one), appeared to take a position much closer to the one the GOP is taking.
As with all things political -- and especially dealing with arcane things like the "Thurmond Rule" -- there are plenty of shades of gray here.
But so far, the allegations of hypocrisy center on three men. Let's break down their comments -- then and now -- and decide how egregiously different they are.
Senate Conference Vice Chairman Charles Schumer (D-N.Y.)
Sunday on ABC's "This Week": "Ted Cruz holds the Constitution, you know, when he walks through the halls of Congress. Let him show me the clause that says president's only president for three years. ... When you go right off the bat and say, 'I don't care who he nominates, I am going to oppose him,' that's not going to fly."
July 2007: "We should reverse the presumption of confirmation [for justices]. The Supreme Court is dangerously out of balance. We cannot afford to see Justice [John Paul] Stevens replaced by another [John] Roberts, or Justice [Ruth Bader] Ginsburg by another [Samuel] 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. They must prove by actions — not words — that they are in the mainstream, rather than the Senate proving that they are not."
The verdict: This second comment sure sounds a lot like Schumer throwing a blanket over basically any George W. Bush Supreme Court nominee with 18 months to go in his presidency. Coming from a guy who now says it's "not going to fly" that Republicans will oppose whoever Obama nominates, that's not exactly a helpful comment.
After the 2007 remarks were circulated over the weekend, Schumer took to Medium to defend himself:
There was no hint anywhere in the speech that there shouldn’t be hearings or a vote. Only that if after hearings and a vote, Democrats determined that the nominee was out of the mainstream and trying to hide it, they should have no qualms about voting no. Nor was there any hint that this idea that Democrats should oppose hard right ideologues should apply only in the fourth year of the president’s term. In fact, I said it should apply to this president, George W. Bush, or any future president whenever they nominated such a candidate.
Here's my problem with this defense: Schumer may not have been talking in 2007 about the Thurmond Rule, but he was making a very political argument about the balance of the court -- one that Republicans are basically making today. He also advocated for a substantial change in how justices are confirmed -- "We should reverse the presumption of confirmation" -- and said the onus should be on the nominees to prove they were in the mainstream, not on the Senate to prove otherwise. He is also saying there should be no confirmation "except in extraordinary circumstances."
Schumer might not have been ruling out the Senate taking up any nominees, but he was raising the bar so high that basically no nominee would likely qualify. His comments seem to be basically a politically savvier and slightly watered-down version of what McConnell was saying -- or should have said -- on Saturday.
Saturday night statement: “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president.”
July 2008: "Now, our Democratic colleagues continually talk about the so-called Thurmond Rule, under which the Senate supposedly stops confirming judges in a presidential election year. I am concerned that this seeming obsession with this supposed rule -- which, by the way, doesn't exist; Senator [Arlen] Specter has researched that thoroughly and there is no such rule. Anyway, I am concerned that this seeming obsession with this rule that doesn't exist is just an excuse for our colleagues to run out the clock on qualified nominees who are urgently needed to fill vacancies."
The verdict: We'll note here that McConnell's 2008 comments were not in regards to a Supreme Court vacancy, but rather a U.S. Circuit Court judge. McConnell also hasn't framed his 2016 opposition to Obama filling the Scalia vacancy as a Thurmond Rule thing, per se.
But McConnell accuses Democrats of wanting to "run out the clock on qualified nominees who are urgently needed to fill vacancies" -- which sounds a lot like what Republicans could soon be doing with the Supreme Court. It's also clear that McConnell was okay with confirming judges in a presidential election year eight years ago -- something that he's not okay with this time around, when it's the Supreme Court.
If McConnell starts invoking the Thurmond Rule, then it's a more-obvious flip-flop. For now, it's more along the lines of a pretty naked political maneuver.
Sen. Patrick Leahy (D-Vt.), ranking member of the Judiciary Committee
Monday on CNN's "State of the Union": "Well, there is no such thing as a ‘Thurmond Rule.’ I used to tease the Republicans about it. ... The fact of the matter is, a Supreme Court justice -- let's have a vote. Let's have a debate."
December 2006: "The Thurmond Rule, in memory of Strom Thurmond – he put this in when the Republicans were in the minority, which said that in a presidential election year, after spring, no judges would go through except by the consent of both the Republican and Democratic [leaders]. I want to be bipartisan. We will institute the Thurmond Rule, yes.”
November 2004: "Whether [Republicans] acknowledge it as the Thurmond Rule or something else, it is a well-established practice that in presidential election years, there comes a point when judicial confirmation hearings are not continued without agreement."
July 2004: "At this point in a presidential election year, in accordance with the Thurmond Rule, only consensus nominees being taken up with the approval of the majority and minority leaders and the chairman and ranking members of the Judiciary Committee should be considered."
The verdict: Of the three here, Leahy's statements are the most clearly contradictory. He has repeatedly talked about abiding by the Thurmond Rule and/or the spirit of it. Now, we basically says it doesn't exist.
At the same time, Leahy in the mid-2000s basically argued that the Thurmond Rule didn't kick in until "after spring," and he said in July 2014 that the clock had begun ticking on it. That's not incongruent with what he's saying today. Rather than pretend he hasn't advocated for the Thurmond Rule before, he should probably stick to this argument instead.