Five Supreme Court Myths Democrats Know To Be False

MYTH #1: ‘In 1988 … President Reagan Put Forward The Nomination Of Anthony Kennedy To Be A Supreme Court Justice ’

SEN. HARRY REID (D-NV): “In 1988, in the last year of his Presidency, President Reagan put forward the nomination of Anthony Kennedy to be a Supreme Court Justice. That was in the last year of his term.” (Sen. Reid, Congressional Record, S.927, 2/23/16)

FACT: Kennedy Was Nominated In 1987, After The Democrat-Led Senate Defeated Robert Bork’s Nomination, To Fill A Vacancy That Arose In June, 1987

Justice Powell retired in June of 1987 (not an election year) with President Reagan nominating his first choice, Robert Bork, in July of 1987 and then ultimately Anthony Kennedy (his third choice) in November 1987 (again not an election year) – with Justice Kennedy being confirmed on February 3, 1988. The Kennedy nomination would be applicable to current Supreme Court vacancy if it arose in in the summer of last year. 

A brief timeline of the Kennedy nomination in replacing Justice Powell:

  • Lewis F. Powell. Jr. served on the Supreme Court for fifteen years. He retired on  June 26, 1987
  • President Reagan announced the nomination of Robert H. Bork July 1, 1987
  • Robert H. Bork nomination was received in the Senate on July 7, 1987
  • The then Democrat-led Senate rejected it on October 23, 1987
  • President Reagan announced the nomination of Douglas Ginsburg on October 29, 1987
  • Douglas Ginsburg’s nomination never reached the Senate
  • President Reagan announced the nomination of Anthony M. Kennedy on November 11, 1987
  • Anthony Kennedy’s nomination was received in the Senate on November 30, 1987 and he was confirmed February 3, 1988


MYTH #2: Constitution Says ‘The Senate Shall… Vote On That Nominee’

SEN. DICK DURBIN (D-IL): “The Constitution, which we have sworn to uphold, is very clear when it comes to Article 2, Section 2. The president shall appoint a nominee to fill a vacancy on the Supreme Court. And the Senate shall, by advice and consent, vote on that nominee. Those are not vague words.” (PBS’s Newshour, 2/23/16)

SEN. BEN CARDIN (D-MD): “Senators were elected for 6-year terms by the citizens of their State and have the right and obligation to vote.” (Sen. Cardin, Congressional Record, S.981, 2/24/16)

FACT: ‘Nowhere In That Document Does It Say The Senate Has A Duty To Give Presidential Nominees A Vote’

U.S. CONSTITUTION, ARTICLE II, SEC. 2: “The President ... shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law...” (“Constitution Of The United States: A Transcription,” U.S. Archives)

SEN. HARRY REID (D-NV): “The duties of the United States Senate are set forth in the Constitution of the United States. Nowhere in that document does it say the Senate has a duty to give Presidential nominees a vote. It says appointments shall be made with the advice and consent of the Senate. That’s very different than saying every nominee receives a vote.” (Sen. Reid, Floor Remarks, 5/19/2005; VIDEO Here)

SEN. PAT LEAHY (D-VT): ‘The Constitution expressly speaks of the Senate's … power to ‘consent,’ which includes the power to withhold such consent’ “The Constitution divides the appointment power between the President and the Senate and expects Senators to advise the President, not just rubber-stamp his choices. In fact, for most of the Constitutional Convention the Founders had assigned the constitutional power to appoint judges exclusively to the Senate. Toward the end of the convention, as part of the system of checks and balances, the appointment power was shared between the Senate and the President. Shortly afterward, William Maclay noted this in his famous journal: ‘Whoever attends strictly to the Constitution of the United States will readily observe that the part assigned to the Senate was an important one - no less than that of being the great check, the regulator and corrector, or, if I may so speak, the balance of this government. ...’ The Senate's role in the process is not secondary and is not confined simply to a vote. The Constitution expressly speaks of the Senate's authority to ‘advise’ as well as the power to ‘consent,’ which includes the power to withhold such consent.” (Sen. Leahy, Remarks At The National Press Club, 6/25/03)


MYTH #3: ‘The Consequences Of The Supreme Court Being Without All Nine Justices For So Long Can Hardly Be Overstated’

SEN. JEANNE SHAHEEN (D-NH): “The consequences of the Supreme Court being without all nine justices for so long can hardly be overstated. Most significant, a long-standing vacancy would compromise the Court’s ability to perform one of its most important functions, that is, establishing a uniform rule of law for the entire country.” (Sen. Shaheen, Congressional Record, S.981, 2/24/16)

SEN. BEN CARDIN (D-MD): “What happens if there is a 4-to-4 vote? … It matters if the Supreme Court is not fully operational and gridlocks in 4-to-4 ties.” (Sen. Cardin, Congressional Record, S.981, 2/24/16)

FACTS: Justices: ‘We’ll Do Our Work’

ASSOCIATE SUPREME COURT JUSTICE STEPHEN BREYER: “We’ll miss him [Justice Scalia], but we’ll do our work. ..For the most part, it will not change... The cases come along. Contrary to what a lot of people think, half of our cases are unanimous. The number of 5-4 cases in a typical year is around 20 percent.” (“Breyer On 8-Member Supreme Court: ‘We’ll Do Our Work,’” Politico, 2/25/16)

ASSOCIATE SUPREME COURT JUSTICE SAMUEL ALITO: “There's nothing in the Constitution that specifies the size of the Supreme Court. There have been times in history where the Supreme Court had an even number of justices.” (“Alito Demurs, Mostly, On Successor To Scalia,” Politico, 2/23/16)

“…rather than making the judicial system grind to a halt, a Supreme Court vacancy merely delays rulings in a small number of cases. A study of the past 60 years of eight-justice rosters reveals that today’s Roberts court can easily handle the current vacancy, however long it lasts.” (Op-Ed, “Only Eight Justices? So What?” Wall Street Journal, 2/23/16)


MYTH #4: ‘Not Since The Civil War Has The Senate Taken Longer Than 1 Year To Fill A Supreme Court Vacancy’

SEN. HEIDI HEITKAMP (D-ND): “Not since the Civil War—not since the Civil War—has the Senate taken longer than 1 year to fill a Supreme Court vacancy.” (Sen. Heitkamp, Congressional Record, S.973, 2/24/16)

FACT: The Court Had A Vacancy For 391 Days After Abe Fortas Resigned In 1969

391 Days: Justice Abe Fortas resigned on May 14, 1969 and Harry Blackmun was sworn in on June 9, 1970. ("Members Of The U.S. Supreme Court," Supremecourt.Gov, Accessed 2/25/16)

Also Notable: “In 1945, Justice Robert Jackson took an extraordinary one-year leave of absence from the Supreme Court to serve as chief prosecutor at the war crimes trials in Nuremberg. … Justice Felix Frankfurter… told him that his absence was not ‘sacrificing a single interest of importance’” (Washington Post’s ‘The Volokh Conspiracy’ Blog, 2/16/16)


MYTH #5: ‘It Doesn’t Matter What People Say’

SEN. BARBARA BOXER (D-CA): “My Republican friends say: Oh, but this Senator said this about it and that Senator said that and Joe Biden said this. It doesn’t matter what people say.” (Sen. Boxer, Congressional Record, S.939, 2/23/16)

SEN. HARRY REID (D-NV): “Course people make statements on a lot of things, but Joe Biden -- now understand, Joe has made a few statements over the years on a lot of things, but in this one instance, it really doesn't mean a thing…” (Sen. Reid, Press Conference, 2/23/16)

SEN. CHUCK SCHUMER (D-NY): “All this back-and-forth of quotes from years ago … don't make a darn bit of difference to the public.” (Sen. Schumer, Press Conference, 2/24/16)

FACT: ‘Don't Tell Me Words Don't Matter’

THEN-SEN. BARACK OBAMA (D-IL): “…the notion is, I guess, words don't matter or are just a bunch of fluff, style over substance. … Don't tell me words don't matter. ‘I Have a Dream,’ just words? ‘We hold these truths to be self-evident that all men are created equal,’ just words? ‘We have nothing to fear but fear itself,’ just words, just speeches? … Don't tell me words don't matter.” (Sen. Barack Obama, Remarks, 2/16/08)



Related Issues: Supreme Court