Yet again, the Supreme Court is on the frontlines of an already raging political war. With only weeks remaining before the election in November, the Democrats are pivoting to focus solely on Trump and his Republican Senate’s constitutional ability to nominate and confirm a Supreme Court Justice to succeed the late Ruth Bader Ginsburg. Trump’s rightful determination to follow Article 2 Section 2 of the United States Constitution is being disingenuously presented as proof of his corrupt desire to “steal another” Supreme Court seat, a charge leveled by the Left to justify the emergency use of “every tool at their disposal.”
In addition, the undeniable political importance of the Judicial Branch is being used by the Democrats to further prop up their cynical belief that the American political system must reject the legislative nuisance that is the Electoral College and embrace mob rule, all under the banner of “democracy.” The argument is that, because Trump didn’t win the popular vote, any and all of his constitutionally valid abilities and actions are therefore democratically invalid.
We’re in danger of a majority of Justices on the Supreme Court being chosen by Presidents who didn’t even get the majority of the popular vote.
Any way you look at it, we’re getting less democratic by the day.
— Pete Buttigieg (@PeteButtigieg) September 22, 2020
Not only that, the Democrats and their mainstream media enablers have preemptively launched an attack on Amy Coney Barrett, who has emerged as “Trump’s overwhelming favorite” to succeed Ginsburg.
— Reuters Politics (@ReutersPolitics) September 22, 2020
For the next few weeks, the Democrats will scream to the skies while declaring that this time things are truly worse than ever before. It’s important that we avoid being dragged into this emotionally driven trap and, instead, seek a healthy dose of historical context. Looking at previous nominations to the Supreme Court during the past 30 years paints a different picture, where Democrats have it easy when they are “in power,” and are willing to use “every tool at their disposal” whenever the political tables turn.
Both of Trump’s Supreme Court nominations have been controversial, with the absurdity of the latter making the former seem routine. Despite Democrats filibustering a confirmation vote in April 2017, the Republicans invoked the “nuclear option,” which allowed them “to break a Democratic filibuster of Supreme Court nominee Neil Gorsuch.” After what now seems like a laughable attempt to smear Gorsuch by citing supposedly “similar language” between his book “The Future of Assisted Suicide and Euthanasia” and an earlier law review article, the Senate confirmed Gorsuch’s nomination by 54 votes to 45, with three Democrats voting in favor. With that majority vote, Gorsuch replaced the late Justice Scalia.
What came next tore political wounds which have yet to even begin to scar. Brett Kavanaugh’s confirmation hearing stands as an infamous moment in modern political history, proving how far the Democrats are willing to go in their pursuit of power. Fearing that Justice Kavanaugh would remove the legislative advantage provided by his predecessor Justice Kennedy, the Democrats and the mainstream media promoted accusations of sexual assault leveled against Kavanaugh, ranging from the unsubstantiated to the utterly spurious. The entire political Left embraced the illogical “Believe All Women” slogan, with presidential hopefuls Sen. Kamala Harris and Sen. Cory Booker gleefully using this newfound virtue signaling opportunity as a platform to launch their doomed campaigns. Sen. Lindsey Graham famously achieved “Lindsey Graham 2.0” status with his powerful summation of the Democrats’ strategy.
— Ian G Haworth (@ighaworth) September 24, 2020
After weeks of inflammatory accusations, media malfeasance, and FBI investigations, Justice Kavanaugh was narrowly confirmed by 50 votes to 48, despite the Republicans holding a larger majority in the Senate throughout Trump’s first term.
During his administration, Obama had three opportunities to nominate new Supreme Court Justices. In 2009, with a Democratic Senate majority of 57 seats, Justice Sonia Sotomayor was confirmed by 68 votes to 31, including Republican Sen. Lindsey Graham 1.0. Sotomayor replaced Justice David Souter, appointed by President George H. W. Bush in 1990. In 2010, with the same Senate majority, Obama nominated Elana Kagan to replace Justice John Paul Stevens, who was appointed by Republican President Gerald Ford in 1975. Justice Kagan was confirmed by 63 votes to 37. Even minority whip Jon Kyl, who opposed Kagan’s nomination as a Supreme Court Justice, rejected the use of strong measures to block a confirmation vote, stating, “The filibuster should be relegated to extreme circumstances, and I don’t think Elana Kagan represents that.”
The only Obama Supreme Court nominee who faced significant opposition was Merrick Garland. While the Democrats will compare 2020 to 2016 as evidence of the Republican’s deep hypocrisy, there are two fundamental differences. Firstly, the Republicans held a Senate majority in 2016, and therefore had every right to reject a Democrat president’s nominee. Secondly, Obama was attempting to replace the originalist and textualist Justice Scalia, meaning that the Republicans were keen to prevent a significant ideological switch.
George W. Bush
During his administration, both of President Bush’s nominees for the Supreme Court were considered by a Senate with a Republican majority. Justice John Roberts was confirmed in September 2005 by 78 votes to 22, succeeding Ronald Reagan appointee Chief Justice William Rehnquist, who died days earlier. Just over two months later, Justice Samuel Alito was confirmed by 58 votes to 42, despite comments from Sen. John Kerry who called for a filibuster to block Alito’s confirmation, accusing “President Bush of trying to make the Supreme Court more ideologically conservative.” Justice Alito succeeded Justice Sandra Day O’Connor, another Reagan appointee who was also considered to be the swing vote for the Rehnquist court.
Bill Clinton’s nominees experienced stunningly smooth confirmation processes, both with a Democrat Senate majority. Justice Ruth Bader Ginsburg was confirmed with a now unimaginable 96 votes to 3, despite refusing to answer questions regarding the constitutionality of some issues and not others during her confirmation hearings. Kavanaugh was famously criticized for similarly refusing to answer similar questions during his hearings. Almost a year later, Justice Stephen Breyer succeeded Nixon appointee Justice Harry Blackmun with 87 votes to 9.
George H. W. Bush
President George H. W. Bush successfully nominated two Supreme Court Justices, despite the Democrats holding a Senate majority on both occasions. In 1990, Justice David Souter succeeded President Eisenhower appointee Justice William J. Brennan Jr., confirmed by 90 votes to 9. Souter was nominated by Bush despite being a “stealth justice” with a minimal “paper trail,” with Souter’s views regarding abortion, affirmative action, or other issues being unknown. As a result, while it was foolishly assumed that Justice Souter would be a “conservative” member of the court, he would go on to consistently vote in line with the Court’s Left-leaning wing.
However, while Bush’s second nomination was eventually successful, his confirmation hearing was eerily similar to Kavanaugh’s hearing in 2018. Justice Clarence Thomas was nominated in 1991 to succeed Justice Thurgood Marshall, a civil rights activist who was appointed by President Johnson in 1967. Justice Thomas’ nomination proceedings were deeply contentious, with multiple groups opposing Thomas because of his conservative positions, especially regarding abortion. In the same way as 2018, the media hungrily spun sexual harassment allegations leveled against Thomas by Anita Hill into an unprecedented frenzy. One statement made during Thomas’ testimony seemed to predict what was yet to come in 2018.
“This is a case in which this sleaze, this dirt, was searched for by staffers of members of this committee. It was then leaked to the media. And this committee and this body validated it and displayed it in prime time over our entire nation.”
Another described the racist condemnation of conservative black Americans we still see leveled today against targets such as Candace Owens or Kanye West.
“This is not an opportunity to talk about difficult matters privately or in a closed environment. This is a circus. It’s a national disgrace. And from my standpoint, as a black American, it is a high-tech lynching for uppity blacks who in any way deign to think for themselves, to do for themselves, to have different ideas, and it is a message that unless you kowtow to an old order, this is what will happen to you. You will be lynched, destroyed, caricatured by a committee of the U.S. Senate rather than hung from a tree.”
Clarence Thomas’ statement in 1991 describes the same racist depravity we see today. pic.twitter.com/WuANcdB8N2
— Ian G Haworth (@ighaworth) September 24, 2020
Can you see the difference?
Our brief analysis of the past 30 years has covered the experiences of 10 different nominations to the Supreme Court. These cases demonstrate a clear pattern, uncovering the cynical strategy at the heart of the Democratic Party’s attempt to undermine Trump’s constitutional right as president to nominate a Supreme Court Justice, and the current Republican Senate’s constitutional duty to confirm his nominee.
Democrat President & Democrat Senate
When the Democrats hold both positions of power relevant to the Supreme Court – the White House and the Senate – their experience has been comparatively smooth sailing. Clinton appointed both Justice Ginsburg and Justice Breyer to the Court with vast bipartisan support, and Obama appointed both Justice Sotomayor and Justice Kagan with comfortable support.
Republican President & Republican Senate
While George W. Bush had a mixed experience when his party held both the White House and the Senate – with Chief Justice Roberts confirmed with a large majority and Justice Alito confirmed with a narrow majority – the same cannot be said for the next Republican president.
Replacing conservative judicial titan Justice Scalia required the use of a “nuclear option” in order to successfully appoint Justice Gorsuch. Replacing Justice Kennedy, whose swing vote was politically crucial for the Democrats’ strategy of using the Supreme Court as a second legislative branch, required overcoming unsubstantiated and discredited waves of accusations of sexual assault, including gang rape.
Democrat President & Republican Senate
The Democrats only nominated one judge for the Supreme Court in the last 30 years when they did not hold the Senate. Obama was well within his constitutional power to nominate Merrick Garland to replace Justice Scalia, and the Republican Senate were well within their constitutional power to refuse a vote.
Republican President & Democrat Senate
The Republicans nominated two judges for the Supreme Court in the last 30 years when they did not hold the Senate. While Justice Souter was confirmed with a huge majority of 90 votes to 9, Justice Thomas experienced a barrage of politically motivated accusations of sexual misconduct, with the clear goal of preventing a conservative judge from replacing a “progressive” one.
The conclusion is obvious. When the rules are in the Democrats’ favor, all is well. In any other scenario, as they state even today, every tool is at their disposal.
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