Thoughts on the Supreme Court

There has been a lot of hullabaloo on the appointment of a Supreme court Justice in the year of the election of the president. The Democrats are saying that a new justice should not be appointed until after the next inauguration. ... Not what they said in 2016.

It is interesting to note that, at least in recent history, it is only Republican nominees who have gone through hell during the nomination process. (Robert Bork, Clarence Thomas, Bret Kavanaugh and others.) According to Thomas Jipping, Senior Legal Fellow and Deputy Director of the Edwin Meese Center for Legal and Judicial Studies, that is because Republicans believe that justices should only look at the law and not consider their personal beliefs and preferences when deciding cases. Since Democrats believe that Supreme Court decisions are made on feelings of the Justices, they are much more critical of the personal background of the nominees.

Actually, for 127 years after the Constitution was ratified, the Senate did not hold public confirmation hearings for Supreme Court nominees. Senators looked at the nominees themselves and simply voted yea or nay. There was NO hullaballoo at hearings because there were none. Today’s familiar image of a President’s Supreme Court nominee sitting before the Senate Judiciary Committee to be grilled about his or her views did not begin until President Woodrow Wilson nominated Louis Brandeis to the Supreme Court in 1916–just over a hundred years ago–The Senate held public hearings for the first time that year. [1][1]

In 2016 before Obama nominated a justice, the Republican Senators sent a letter to McConnel saying they would not vote for a Supreme Court nominee before a new president was sworn in. The election was certain to give a new president and do not forget, at that time, many thought it likely that Hillary Clinton would win.

(Note: this is Advice of Senate)

Two important circumstances were in play in 2016:

  1. Divided Senate and Presidency
  2. The current president would not be in office after the election.

Previously in US history when the above circumstance occurred, only 2 out of 9 times was a new Supreme Court judge appointed.

The similarity of the 2020 situation to 2016 is only surface similarity.

In 2020, the circumstances are the exact opposite of what they were in 2016:

  1. There is no divided government. The president and Senate are the same party.
  2. The incumbent can continue after election.

Historically in 17 out of 19 times when same party was in the White House and Senate, a new judge was appointed to the Supreme Court in the year of election.[2]

Interesting on how 4 years can completely change a person’s views. Below are quotes from Democrats in 2016 (italics mine):

VP Joe Biden 2016

“The American people deserve a fully staffed Court of nine.”

Presidential Candidate Hillary Clinton 2016

The Supreme Court vacancy must be filled immediately. “The president nominates and then the Senate Advises and Consents, or not, but they go forward with the process.”

Their advice in 2016 was to wait.

Rep Nancy Pelosi 2016

“What we are seeing here, and I hope this is temporary, is a disrespect for the constitution.”

Sen Bernie Sanders 2016

“The constitution is 100% clear; the President of the United State has the right to nominate someone to be a justice of the Supreme Court. The senate’s function is to hold hearings and to vote.”

Actually no, the constitution says nothing about hearings and there never were hearings before 1916. And the Senates function is to advise and consent (or not to quote Hillary.)

Sen and VP Candidate Tim Kane 2016

“The blockade on filling a naturally occurring vacancy, in my view, is harmful to the independence of the Article III Branch.”

Sen Patrick Lehey 2016

“You cannot keep a seat on the Supreme Court which represents all of us, you cannot keep it vacant against the constitution.”

NO... The Supreme Court represents the LAW not us.

Sen Elizabeth Warren 2016

“They do pretty much everything they can to avoid acknowledging the legitimacy of our democratically elected president.”

Oh that’s right the Republicans impeached Obama for non-crimes and non-misdemeanors WAIT...NO... It was the Democrats who avoided acknowledging the legitimacy of Trump and fabricated a nonsensical  impeachment.

Rep Nancy Pelosi 2016

“The American people expect the president’s nominee to be given a fair hearing and a timely vote in the Senate.”

Was that hearing for Brett Kavanaugh fair???

Sen Chuck Schumer 2016

“Every day that goes by without a 9th justice is another day the American people’s business is not getting done.”

And what business did the House of Representatives get done over the last 2 years?

Sen Elizabeth Warren 2016

“I say to you do your jobs, vote for a Supreme Court Nominee”

Sen and VP Candidate Tim Kane 2016

“Instead of just saying the blanket rule is no matter who you are, no matter what your qualifications, because you were sent by this president we will create a unique rule for you and refuse to entertain you.”

Sen Elizabeth Warren 2016

If you want to stop extremism in your party, you can start by showing the American People that you respect the President of the United States and the Constitution.

VP Joe Biden 2016

The American People deserve a fully staffed court of nine.

Sen and VP Candidate Kamala Harris 2020

“One of the most important consequences of who is president of the United States is who sits on the United States Supreme Court.”[3]


[1]  https://ij.org/sc_courting_history/the-dramatic-story-of-the-first-senate-confirmation-hearings-for-a-supreme-court-nominee-courtinghistory/

[2] The information on the history of the Supreme Court nominations was taken from Thomas Jipping, Senior Legal Fellow and Deputy Director of the Edwin Meese Center for Legal and Judicial Studies. His discussion of these matters is found on-line at the “Direct Line” Facebook site: https://www.facebook.com/watch/live/?v=863175177547670&ref=watch_permalink

Unfortunately, this broadcast had a problem with the audio and the sound does not work until 13:21 seconds into the video. But all the quotes in this paper come after that point.

[3] Quotes from https://mobile.twitter.com/i/status/1307877608487628802