Senate Democrats Put Judicial Philosophy on the Table

WASHINGTON, D.C.U.S. Senate Republican Leader Mitch McConnell (R-KY) delivered the following remarks today on the Senate floor regarding the Supreme Court:

“The Constitution makes the President and the Senate partners in selecting Supreme Court Justices. And as a practical matter, each Senator gets to define what the ‘advice and consent’ role means to them.

“For much of the 20th century, Senates typically took a deferential approach. Senators tended to give presidents lots of leeway so long as nominees checked basic professional and ethical boxes.

“But then the political left and Senate Democrats initiated a series of major changes.

“In the late 1980s, Democrats thrust the Senate into a more aggressive posture toward nominations with an unprecedented, scorched-earth smear campaign that took aim at a nominee’s judicial philosophy.

“The Washington Post editorial board said at the time that the formerly ‘conventional view’ that Presidents would get great deference had ‘now fallen into… disrepute.’ They worried that a ‘highly politicized future’ for ‘confirmation proceedings’ might lie ahead following Democrats’ actions.

“Just a few years later, personal attacks on then-Judge Thomas made the previous hysteria over Judge Bork seem like lofty debate by comparison.

“And one year after that, in 1992, then-Senator Biden proclaimed that if another vacancy occurred toward the end of President Bush 41’s term, the Judiciary Committee should not hold any hearings before the presidential election.

“Well, that situation didn’t arise. And once President Clinton took office, Republicans did not try to match Democrats’ behavior out of spite.

“We tried to deescalate. Justices Ginsburg and Breyer both won lopsided votes with opposition in the single digits.

“But the very next time that Democrats lost the White House, the precedent-breaking tactics came roaring back.

“During the Bush 43 Administration, Senate Democrats, and especially the current Democratic Leader, took the incredibly rare tactic of filibustering judicial nominations and made it routine.

“The press described the sea change: ‘They said it was important for the Senate to change the ground rules and there was no obligation to confirm someone just because they are scholarly or erudite.’  Democrats decided that pure legal qualifications were no longer enough. They wanted judicial philosophy on the table.

“So, 20 years ago, several of the same Senate Democrats who are now trumpeting the historic nature of Judge Jackson’s nomination used these new tactics to delay or block nominees including an African-American woman and an Hispanic man.

“In one case, Democrats suggested their opposition was specifically because the nominee’s Hispanic heritage would make him a rising star.

“Half of Senate Democrats voted against Chief Justice Roberts, the best appellate advocate of his generation. All but four Democrats voted against Justice Alito, who had the most judicial experience of any nominee in almost a century.

“There was no question about the basic legal qualifications of either. But Democrats opposed both.

“And in mid-2007, more than a year before the next presidential election, Senator Schumer expanded upon the Biden Standard from 15 years prior. He said that if another Supreme Court vacancy arose, Democrats should not let President Bush fill it.

“Our colleague from New York proposed to keep a hypothetical vacancy open until an election that was more than a year away.

“During President Obama’s terms, Republicans took up the same hardball tactics that Democrats had just pioneered.

“But our colleagues recoiled at the taste of their own medicine and broke the rules to escape it. They preferred to detonate the ‘nuclear option’ for the first time ever rather than let President Obama’s nominees face the same treatment they’d just invented for President Bush’s.

“Democrats did not then change the rule for the Supreme Court because there was no vacancy. But the late Democratic Leader Harry Reid said publicly he’d do the same thing for the Supreme Court with no hesitation.

“By 2016, Democrats had spent thirty years radically changing the confirmation process, and now they had ‘nuked’ the Senate rules. Obviously this pushed Republicans into a more assertive posture ourselves.

“So when an election-year vacancy did arise, we applied the Biden-Schumer standard and did not fill it. And then, when Democrats filibustered a stellar nominee the next year, we extended the Reid standard to the Supreme Court.

“In 2016 and 2017, Republicans only took steps that Democrats had publicly declared they’d take themselves.

“Yet our colleagues spent the next four years trying to escalate even further. Justice Gorsuch, impeccably qualified, received the first successful partisan filibuster of a Supreme Court nominee in American history.

“Justice Kavanaugh got an astonishing and disgraceful spectacle.

“And Justice Barrett received baseless, delegitimizing attacks on her integrity.


“Now, Mr. President, this history is not the reason why I oppose Judge Jackson.

“This is not about finger-pointing or partisan spite. I have voted for a number of President Biden’s nominees when I can support them. And just yesterday, moments after the Judiciary Committee deadlocked on Judge Jackson, they approved another judicial nominee by a unanimous vote.

“My point is this: Senate Democrats could not have less standing to pretend that a vigorous examination of a nominee’s judicial philosophy is somehow off limits.

“My Democratic friends across the aisle have no standing to argue that Senators should simply glance at Judge Jackson’s resume and wave her through.

“Our colleagues intentionally brought the Senate to a more assertive place. They intentionally began a vigorous debate about what sort of jurisprudence actually honors the rule of law.

“This is the debate Democrats wanted. Now it is the debate Democrats have.

“And that’s what I will discuss tomorrow:

“Why Judge Jackson’s apparent judicial philosophy is not well suited to our highest Court.”