People keep asking the question, “Why couldn’t Republicans at least give Merrick Garland a hearing?” in 2016. By people, I mean “Democrats” who bleated about Garland right up until the confirmation vote for Neil Gorsuch.
The appropriate answer is, “It wouldn’t matter.” Republicans could have gone through every exercise right up to having a confirmation vote and had it failed, Democrats would still be complaining and still whispering Neil Gorsuch is “illegitimate” or holds a “stolen” seat on the Supreme Court.
Democratic petulance resulted in Mitch McConnell having to exercise the “nuclear option” so that consideration for Supreme Court justices to get an up or down confirmation vote now only requires 51 votes instead of 60. Contrary to Chuck Schumer’s repeated lies, there is no “60 vote threshold” for Supreme Court nominees. The 60 votes are only for invoking cloture, allowing a SCOTUS nominee to proceed to the floor for a confirmation vote.
Democrats, despite all of their self-righteous caterwauling about Merrick Garland, should be reminded of their role in creating a politicized climate for Supreme Court (and lower court) nominees until the end of time. The political breakdown with judicial nominees started somewhere, and it wasn’t with Merrick Garland.
Judge Robert Bork and Justice Clarence Thomas suffered indignities at the hands of Democrats unlike any other Supreme Court nominees in the history of the United States. Bork became the target of Senator Kennedy. When Ronald Reagan nominated Bork to the Supreme Court, Kennedy took to the Senate floor and said the following:
Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is—and is often the only—protector of the individual rights that are the heart of our democracy.
Such a statement was pretty rich coming from a man who let a woman drown to death so he could cover his rear end. Kennedy’s smear of Judge Bork on the floor of the Senate lead to an organized smear campaign, headed up by the freak-show, People For The American Way, a misnomer if there ever was one. Democrats went so far as to leak his video rentals to the public. His viewing habits included sordid selections such as The Marx Brothers, ‘A Day At The Races,’ and the Danny DeVito comedy, ‘Ruthless People.’ Bork eventually lost his confirmation vote, thanks in large part to the orchestrated smear campaign against him by Democrats.
Fast-forward four years. George HW Bush nominated Clarence Thomas to the Supreme Court. There wasn’t much objection to Thomas’s nomination, and his confirmation seemed to be a sure thing. Two days before the vote, Democrats leaked a confidential statement made by Anita Hill, wherein she (falsely) claimed Thomas sexually harassed her ten years earlier. How convenient. What Thomas accurately described as a “high-tech lynching” got underway. For over a month Thomas endured the indignities of Hill’s lies and stood his ground against Democrats who happily used Hill’s accusations to besmirch Thomas’s reputation. Nevertheless, Thomas persisted, and a vote of 52-48 confirmed him.
Democratic shenanigans didn’t end with Supreme Court nominees. In 2001, President George W. Bush nominated Miguel Estrada to the DC Circuit Court. Despite a unanimous “well qualified” rating from the American Bar Association, Democrats used similar smear tactics against Estrada as they did with other judicial nominees, relying not on his record or testimony, but instead the yelping of liberal groups opposed to his nomination. Democrats used the filibuster tactic against Estrade seven times. His candidacy in limbo for over two years, Estrada finally withdrew his name from consideration.
The name Peter Keisler is likely a mystery to most people. Keisler was nominated by President George W. Bush to the DC Circuit Court in 2006. Keisler had impeccable credentials and received a hearing. However, after Democrats took control of the Senate in 2007, Bush had to re-nominate Keisler. It’s not difficult to figure out what happened. Keisler didn’t get to have a hearing from Patrick Leahy, the new Chairman of the Judiciary Committee, let alone a vote.
In 2007, twenty-five Democrats including Charles Schumer and Senator Barack Obama pushed Democrats to filibuster the nomination of Samuel Alito to the Supreme Court. The effort failed, likely because Democrats couldn’t turn up any dirt on Alito to leak to the press and their frequent attempts to engage in smear campaigns, failed.
The latest example is Neil Gorsuch. Democrats couldn’t dig up dirt on him, and the examples they used to attack his record were laughable. Still, they filibustered Gorsuch’s nomination and why? Out of spite. Engaging in a stupid fight over a replacement for Justice Scalia, Democrats, forced the hand of Mitch McConnell who followed the Democrats’ play and invoked the nuclear option, clearing the way for Gorsuch’s confirmation.
Democrats can whine about Merrick Garland all they want. No, he didn’t get a hearing. He also didn’t have his named dragged through the mud, leaked details of his life made public or the indignity of being accused of things he did not do.
Democrats did those to themselves. Don’t let them forget it.