Democrats Have Driven the Politicization of Judicial Confirmations at Every Turn
‘I do not blame some of my Democratic colleagues who have not been present for all of this, and who wish the Senate would behave differently. But just know this… Every new escalation, every new step, every new shattered precedent, every one of them, was initiated [by Democrats]… over the strenuous objection of Republicans, who tried in each instance to stop Democrats from trading away long-term Senate norms for short-term political wins.’
WASHINGTON, D.C. – U.S. Senate Majority Leader Mitch McConnell (R-KY) delivered the following remarks today on the Senate floor regarding the Supreme Court:
“Colleagues, my first experience with Supreme Court confirmations here in the Senate, I was a young staffer for a junior member of the Judiciary Committee.
“That was also the same time I met a young guy named Lamar Alexander who had just left the Senate to go down to the White House to work in congressional affairs.
“So I’ve had an opportunity for quite a long time to observe the confirmation process through various ups and downs, periods when nominees were confirmed almost overwhelmingly and periods during which there were heated, to put it mildly, contests over the nomination.
“What I think I can safely say about the Senate over the last 40 or 50 years is that it's in an assertive period. In other words, viewing the whole process as a joint thing. That the President has a role to play and the Senate has a role to play and at various times in the history of our country the Senate's been pretty passive about it and at other times they've been pretty aggressive about it.
“The Constitution is clear, the Senate has a role if it chooses to exercise it. Rarely have we ever had a nominee as extraordinary as the one we have before us right now.
“We’ve had a chance to witness this outstanding nominee. We’ve watched her in committee. She’s demonstrated she has the deep legal expertise, dispassionate judicial temperament and sheer intellectual horsepower that the American people deserve to have on their Supreme Court.
“Last week we saw why fellow legal scholars called Judge Barrett, quote, ‘a brilliant and conscientious lawyer who will analyze and decide cases in good faith’ and they say she is, quote, ‘tailor made for this job.’
“We saw why her former law clerks and students, call her, quote, ‘a woman of unassailable integrity’ and ‘a role model for generations to come.’
“We saw why the American Bar Association, an institution the Democratic Leader has called the gold standard deemed Judge Barrett well qualified to serve on the Supreme Court and they heard why the legal professionals behind that rating called her, quote, ‘a staggering academic mind.’
“The chair of the A.B.A.'s Standing Committee on the Federal Judiciary told the committee directly that, quote, ‘in interviews with individuals in the legal profession and community who know Judge Barrett, whether for a few years or decades, not one person, not one, uttered a negative word about her character.’
“This outstanding nominee is exceptionally suited to this job, period. And I know we all know that.
“She is an exceptional nominee to the Supreme Court who will make the Senate and the country exceedingly proud.
“Now there are a few of us around here who have experienced the last 30 years up close and personal, and I’m one of them.
“Some of you followed parts of this history from the outside and now you're making history.
“It's a matter of fact -- a matter of history -- that it was Senate Democrats who first began our contemporary difficulties with judicial nominations back in 1987, and who have initiated every meaningful escalation -- every single one of them -- from then up to the present day.
“In 1987, Ted Kennedy and his friends introduced the country to Robert Bork’s America, the first effort to smear a fully qualified judicial nominee based on insulting apocalyptic scare tactics.
“Even some of the people who were directly involved in borking Bork — Democrats, by the way — say they regret that low moment and what it has unleashed in the years since.
“In the early 2000's, it was Democrats who very willfully invented a brand-new strategy to make judicial ideology, and not qualifications, the acceptable criteria for tanking presidential nominees.
“I remember reading in the early part of Bush 43's first term that a seminar was convened by my friend the Democratic Leader, and he invited a couple of scholars -- Laurence Tribe and Cass Sunstein -- to come talk to him about the appropriateness of beginning to use every single tool in the toolbox to stop judicial nominations.
“It was always possible to filibuster judges; it just wasn't done. I mean there are plenty of things that you could do that you don't do. It just simply wasn't done.
“The best example of that was the Clarence Thomas nomination. It couldn't have been a more controversial nomination than that one.
“The Chairman of the Judiciary Committee was Joe Biden and Ted Kennedy was sitting next to him. It was about as aggressive as it gets. It made, in some ways, the Bork treatment look like child's play.
“The committee reported out Justice Thomas with an even vote. And as we all know around here, it only takes one of 100 senators to make you get 60. Just one.
“The tradition of dealing with the judicial nominees with a simple majority was so strong that not one Democrat, not one, required 60 votes on Clarence Thomas.
“In case you don't remember the vote on his confirmation, it was 52-48. One Senator out of 100 could have denied Clarence Thomas his career on the Supreme Court.
“That's how strong the tradition was of dealing with the judiciary in a simple majority way.
“Well, in Bush 43, my colleague the Democratic Leader, at this meeting apparently with Cass Sunstein and Laurence Tribe -- I’m paraphrasing I’m sure — was predicting all of these crazy right-wing judges would be set up by Bush 43 and we ought to use every tool in the toolbox, whether it's been used before or not, to stop judicial nominees.
“So Democrats used the brand-new tool, the partisan filibuster, to block one Bush nominee after another whose qualifications nobody even disputed.
“In her own confirmation hearing years later, for example, now-Justice Elena Kagan went out of her way to say Miguel Estrada, a name some of you may not be familiar with if you got here recently, would have been qualified to sit on the D.C. Circuit. She said he would even be qualified to sit on the Supreme Court.
“He became the poster child for this new process invented by the Democratic Leader and his colleagues to routinely filibuster judges.
“It was written, the suspicion was, that it might provide for Bush 43 the opportunity to name the first Hispanic Supreme Court Justice, and of course they didn't want that to happen.
“So Senate Democrats filibustered him seven separate times in 2003. He was one of the many victims of this norm-shattering, precedent-breaking behavior. A few years later, colleagues such as Senator Biden, Durbin, Leahy, Obama, and Schumer tried to filibuster Justice Alito’s nomination to the Supreme Court.
“Fortunately, that was not successful. But then something really funny happened.
“All of a sudden there was a new president, President Obama. Suddenly, a Democratic president was making judicial nominations.
“Well, imagine what happened then. Suddenly Senate Democrats became very allergic to experiencing the effects of what they had started -- the effects of their own playbook.
“They had no patience to taste their own medicine. Colleagues did not appreciate being held to the standards they just created a few years before. The shoe was on the other foot.
“Well, we all know what happened next. Another massive Senate-shaking escalation by Senate Democrats in 2013: the nuclear option.
“They broke the Senate rules to change the Senate rules so that a Democratic president would not have to play by the same rules they had invented shortly before.
“And with a 51-vote threshold in place, Democrats began confirming nominees without meaningful minority support.
“I said at the time, quoting myself, they'd regret it a lot sooner than they would think.
“Well, that regret began in 2016.
“In 2016, when Justice Scalia passed away, Senate Republicans had won our majority a year earlier. As I said then when I recommended to all of you that we not fill that vacancy created in the middle of a presidential election year, that you'd have to go back to 1888 to find the last time a Senate of a different party from the president confirmed a Supreme Court nominee to a vacancy created during the presidential election year.
“In other words, not surprisingly, one party in control of the Senate was less inclined, and had been less inclined for a very long time, to confirm a Supreme Court nominee in the middle of a presidential election year.
“It was entirely within the rights of the Senate to do that because what had clearly developed over these years was the Senate viewed itself as a partner -- a partner in the process. The President gets to nominate, but we get to decide whether to act on the nomination.
“Needless to say, after the unprecedented Senate-shaking steps that Senate Democrats had taken, the Republican Senate majority was not much inclined to depart from precedent and do President Obama that favor.
“Our decision in 2016 was fully in line with precedent, fully within the Constitution and completely within the Senate rules. Now, I understand why they didn't like it. I wouldn't have either. Of course they didn't like it. But elections have consequences and America had chosen a Republican Senate in 2014. But there's no parallel between actually breaking the rules, as Democrats did in 2013, and merely applying the rules in ways that Democrats do not like.
“If the Senate's going to function, we must maintain a distinction between when people break the rules and when they apply the rules in ways we may not like.
“When President Trump won in 2016, Senate Democrats took yet another reckless and unprecedented step. They mounted the first-ever successful partisan filibuster of a Supreme Court nominee. That had not been done before. Tried it on Alito. It didn't succeed. Tried it on Gorsuch, and it did.
“So the message was, in effect, nobody who President Trump nominates is going to get 60 votes for the Supreme Court. No matter how qualified.
“Of course, speaking of qualifications, Justice Gorsuch’s qualifications were simply beyond question. Someone who frankly has gone on to issue some rulings, by the way, that these guys over here like, which shows you that predicting what a Supreme Court Justice is going to rule on has been a hazardous guess most of the time.
“Their apocalyptic threats and predictions about what's going to happen with nominees of Republican presidents have been consistent going back to John Paul Stevens. Every single one of them is going to be a disaster for women and minorities and all the rest, none of which, of course, ever materializes.
“So Republicans applied and extended what Senate Democrats had begun in 2013. They had left out the Supreme Court from being dealt with as a simple majority.
“So we decided we're going to return to where, by the way, the judicial calendar was by practice anyway just a few years ago. It was always dealt with by simple majority. The Thomas nomination proved it. That was the custom here until our friends on the other side decided to start a new custom. It was within the rules, but a new custom.
“So all my friends, this happened as a result of the threshold being lowered for the Supreme Court, is we're back to where we were as recently as Clarence Thomas. The executive calendar is dealt with, with a simple majority.
“I think that's better for the country, and they will benefit from that, too, at some point. When you have a President and a Senate of the same party, obviously, this is going to happen quicker.
“That's the way it's always been. Whether the rule allowed a filibuster or not.
“So ironically, we are back to where we were, and the entire executive calendar will now be dealt with as it was a few years ago, before all of this back and forth, with a simple majority.
“Well, obviously, Justice Gorsuch was confirmed on a bipartisan basis once the executive calendar was returned, finally, to a simple majority.
“And then Justice Kavanaugh: most of us were here for that. Despite the horrific and embarrassing display that some of our Senate colleagues aided and abetted, we made it through that.
“So the good news is this: in about 72 hours, I anticipate we will have a third new Associate Justice of the Supreme Court.
“I do not blame some of my Democratic colleagues who have not been present for all of this, and who wish the Senate would behave differently. But just know this: this is not spin. This is fact. Every new escalation, every new step, every new shattered precedent, every one of them, was initiated over there. No exceptions. And it all happened over the strenuous objection of Republicans who tried in each instance to stop Democrats from trading away long-term Senate norms for short-term political wins.
“17 years ago, colleagues, Democrats were boasting to newspapers about this brand-new campaign to politicize judicial confirmations.
“They thought it was a great idea. They bragged about it. One of my colleagues called himself the king of the filibuster. He proudly wanted to own it.
“Well, sooner or later, the shoe is always on the other foot.
“So I hope our colleague from New York is happy with what he has built. I hope he is happy with where his ingenuity has gotten the Senate.
“Colleagues, we have had this argument over and over for months, if not years.
“This is not really what we are here to debate today. We are here to actually consider an outstanding nominee whose qualifications nobody doubts: Judge Amy Coney Barrett.
“So, colleagues, let's get on with it. Let’s do our job. Let’s rediscover the rational treatment of nominations that the Democratic Leader embarked on a deliberate project, starting 20 years ago, to erase.
“We will give this nominee the vote she deserves no later than Monday.”
Related Issues: Judicial Nominations, Supreme Court, Senate Democrats