Media figures, many of them conservative, are pushing the false talking point that Senate Democrats are to blame for Senate Majority Leader Mitch McConnell’s threat to change the rules and allow Supreme Court nominee Neil Gorsuch to be confirmed by a simple majority vote. In fact, past Senate rule changes effectuated by Democrats have not applied to Supreme Court nominees, and they were made in response to historic GOP obstruction of noncontroversial Obama nominees. Gorsuch, on the other hand, is considered to be a highly ideological nominee who falls to the right of Antonin Scalia.
Republicans Threaten “Nuclear Option” To Confirm Trump’s Supreme Court Nominee
Senate Majority Leader McConnell Threatens To Use The “Nuclear Option” To Confirm Gorsuch. Sen. Mitch McConnell (R-KY) threatened to change Senate rules to allow President Donald Trump’s Supreme Court nominee, Neil Gorsuch, to be confirmed with a simple majority rather than 60 votes, a move known as the “nuclear option.” From Slate:
Democratic and Republican leaders in Congress set the stage for what will be a fierce battle in Congress this week over the confirmation of Judge Neil Gorsuch to the Supreme Court. Regardless of what happens, Senate Majority Leader Mitch McConnell said there will be a vote and Gorsuch will be confirmed this week.
“How that happens really depends on our Democratic friends,” McConnell said on NBC’s Meet the Press. “How many of them are willing to oppose cloture on a partisan basis to kill a Supreme Court nominee.” McConnell has said that if it’s necessary he will push for a change in the rules in order to allow Supreme Court nominees to be confirmed with a simple majority vote rather than the 60 needed now. That has long been known as the “nuclear option.” [Slate, 4/2/17]
Media Have Been Providing Cover For Republicans’ Potential Radical Move, In Some Cases Distorting A Senate Rule Change Led By Harry Reid In 2013
Fox Anchor Gregg Jarrett: “If Democrats Don’t Like” The “Nuclear Option,” “They Have Harry Reid To Blame For It.” Fox anchor Gregg Jarrett falsely equated the possibility of allowing a simple majority to approve Supreme Court nominations with then-Senate Majority Leader Harry Reid’s (D-NV) 2013 rule change, which did not apply to the Supreme Court, on Fox News in order to claim Democrats did not have standing to oppose a change in Senate rules to confirm Gorsuch:
GREGG JARRETT: So, a week from today the Judiciary Committee will vote Gorsuch out of committee. He will be approved. It then goes to the full Senate next week. One of two things could happen: Democrats may try to filibuster, but there are a bunch of Democrats getting a lot of pressure in red and purple states up for re-election in less than two years to vote for Gorsuch. They may flip and favor him for political expediency. Second, if they do filibuster, Republicans simply get rid of the filibuster. It's called the nuclear option. If Democrats don't like it, they have Harry Reid to blame for it, so a simple majority will likely confirm Gorsuch. [Fox News Channel, Happening Now, 3/27/17]
CNN Anchor Chris Cuomo: “The Democrats Changed The Rules. … They Started Us Down This Road.” CNN anchor Chris Cuomo blamed Democrats for Republicans’ threat to invoke the “nuclear option” for Supreme Court nominees:
CHRIS CUOMO: Now, here’s the problem there, right, is that the Democrats changed the rules. They'll say, “Well, we preserved Supreme Court nominees. We didn't blow up the filibuster for that.” Still, they started us down this road. How do you see it going with Gorsuch? [CNN, New Day, 3/27/17]
Fox News Regular Marc Thiessen: Democrats “Are The Ones Who Did The ‘Nuclear Option’ Initially To Pass All These Federal Judges.” While appearing as the guest host on Fox News program Outnumbered, regular guest Marc Thiessen falsely equated past rule changes with allowing a simple majority to confirm Gorsuch:
MARC THIESSEN: He's going to get confirmed no matter what the Democrats do. The Democrats, when they threatening filibuster, what they’re doing is holding a gun to their own head and saying, “Don't make me pull the trigger.” They have got no negotiating position whatsoever. He is going to be -- they are the ones who did the “nuclear option” initially to pass all these federal judges. [Fox News Channel, Outnumbered, 3/24/17]
Townhall’s Guy Benson: “It Is So Rich Watching These Democrats Pretend Like They’re The Victims In All Of This. … Especially After That 2013 ‘Nuclear Option’ From Harry Reid.” Townhall’s Guy Benson, a regular guest on Fox News, drew a false equivalence between rule changes in 2013 under then-Senate Majority Leader Harry Reid (D-NV) and present Republican tactics:
GUY BENSON: That is the thing. It is so rich watching these Democrats pretend like they're the victims in all of this. It’s the Democratic Party that for decades has consistently been the aggressors in these fights. They have escalated time after time with one power grab after another, to reflect their own self-interests, and now finally when Republicans retaliate a little bit, especially after that 2013 “nuclear option” from Harry Reid, oh, they're squealing like this is some great, great injustice. [Fox News Channel, Fox & Friends, 3/31/17]
Conservative Pundit Hugh Hewitt Deceptively Invents “The Reid Rule.” In a series of tweets, conservative pundit Hugh Hewitt attempted to brand McConnell’s potential rule change as the “The Reid Rule,” dishonestly neglecting to mention that Reid’s rule change did not apply to Supreme Court nominations:
Reid’s 2013 Rule Change Did Not Apply To Supreme Court Nominations
Reid’s 2013 Rule Change Did Not Apply To Supreme Court Nominations. In the face of historic GOP obstruction of President Barack Obama’s nominees, Reid led a change to Senate rules for executive and judicial nominees for courts lower than the Supreme Court:
Senate Majority Leader Harry Reid announced a proposal on the Senate floor Thursday morning tp (sic) drastically change Senate rules on the controversial filibuster. His proposal requires only a simple majority vote to approve executive and judicial nominees.
The Senate passed the measure by a 52-48 vote Thursday afternoon. All but three Democrats voted in favor of the major rules change, which now allows most presidential nominees to get an up-or-down vote.
This doesn't apply to Supreme Court nominees or the passage of ordinary legislation. [Business Insider, 11/21/13]
Reid Changed Senate Rules In Response To Historic GOP Obstruction Of Noncontroversial Executive And Judicial Nominations
PolitiFact: Republican Blocking Of Obama Nominees Prior To Reid’s Rule Change Was “Disproportionate By Historical Standards.” After Reid triggered the “nuclear option,” PolitiFact noted that “by our calculation, there were actually 68 individual nominees blocked prior to Obama taking office and 79 (so far) during Obama's term”:
By our calculation, there were actually 68 individual nominees blocked prior to Obama taking office and 79 (so far) during Obama's term, for a total of 147.
Reid's point is actually a bit stronger using these these revised numbers. Using these figures, blockages under Obama actually accounted for more than half of the total, not less then (sic) half. Either way, it's disproportionate by historical standards. [PolitiFact, 11/22/13]
Wash. Post: “Half Of All Filibusters Of Executive-Branch Nominees Have Occurred Under President Obama.” The Washington Post's James Downie pointed out that before Reid’s rule change, the GOP had turned the filibuster “from a rarity to an oft-used tool for nullification and unprecedented obstruction”:
Until very recently in U.S. history, filibusters were rarely used. Half of all filibusters of executive-branch nominees have occurred under President Obama, and it was obvious from the first day of his presidency that Republicans would use the tactic to hamstring the government and block Obama.
Senate Majority Leader Harry Reid, then, had every right to push for changes to filibuster rules four years ago, when GOP use of the filibuster was already out of control. But instead, Reid offered deal after deal to Senate Republicans. They accepted some. They honored none. Instead, the delaying tactics have continued. Frequently they have been used to block the implementation of laws the Senate had passed -- the two-year filibustering of the first head of the Consumer Financial Protection Bureau, for example, just because Republicans didn't like the law. And Republicans have paired judicial nullification with legislative nullification, blocking a record number of Obama's judicial appointees -- a power the Constitution actually mentions, unlike the filibuster -- for no real reason other than that they were Democratic nominees, not Republican ones. (Democrats were guilty of this under President George W. Bush as well, it must be noted, and deserve criticism for that, even if the number of filibusters was lower.)
[The GOP] could have stopped the unprecedented number of filibusters of presidential nominations, given that the president has a clearly defined constitutional responsibility to appoint people. They could have stopped blocking duly passed laws. But they didn't.
So Republicans decrying filibuster reform as “dictatorial” or “a day to be sad” or other hyperbolic claims should look in the mirror. No one forced them to turn filibusters from a rarity to an oft-used tool for nullification and unprecedented obstruction. They have only themselves to blame. [The Washington Post, 11/21/13]
Reid Made The Rule Change After Republicans Obstructed Noncontroversial Nominees Even While Admitting They Were Qualified For The Federal Bench. Prior to Reid's 2013 rule change, Senate Republicans held up the nominations of Patricia Millett, Robert Wilkins, and Cornelia Pillard to the D.C. Circuit Court of Appeals, even though all were highly qualified. The Huffington Post noted that Republicans “readily admit ... they don't really have a problem with any of Obama's picks for the D.C. Circuit,” which is considered the second most important court in the nation, but “just don't want [Obama] to fill its three vacancies”:
Senate Republicans filibustered another one of President Barack Obama's nominees on Tuesday: Nina Pillard, a Georgetown University law professor and a noncontroversial nominee to the D.C. Circuit Court of Appeals.
Republicans readily admit their opposition to Pillard isn't about her. In fact, they don't really have a problem with any of Obama's picks for the D.C. Circuit, the second most powerful court in the nation. They just don't want him to fill its three vacancies. Many of them say the court isn't busy enough to warrant filling its empty seats; others make the counterintuitive argument that Obama is “court-packing” by filling routine vacancies. But both of those arguments gloss over the fact that the president, any president, has a constitutional duty to fill empty court seats, and barring extraordinary circumstances, the Senate is supposed to give nominees a vote.
Pillard's filibuster is the latest example of how the Senate isn't holding to that standard anymore. Not only is she the third noncontroversial nominee that Republicans have filibustered in the last two weeks, but she is now the 20th Obama nominee who is either currently being blocked or was blocked and ultimately withdrew from the process. Those blockages cause a logjam that reverberates through the judiciary and the executive branch, as positions have gone unfilled at crisis levels dating back to 2007.
The Huffington Post crunched some data and found that, as of Tuesday, 13 judicial nominees have been returned to Obama and were not renominated or withdrew their nominations, four judicial nominees aren't moving because GOP senators won't let them advance in the Senate Judiciary Committee, and three other nominees (two judicial, one executive) were recently filibustered for reasons that had nothing to do with their qualifications. [The Huffington Post, 11/13/13, remarks by Sen. Harry Reid, 11/18/13]
To read about the GOP obstruction of Obama’s nomination of Victoria Nourse, which is also illustrative of Republicans’ blockades of even noncontroversial nominees, click here.
After Taking Control Of The Senate In 2014, Republican Leaders Engaged In Even More Obstruction Of Obama Nominees. Following the 2014 elections, Republicans confirmed a “historically low number” of federal judges, according to a report from Mother Jones:
While Democrats have publicly hammered the GOP's refusal to consider Merrick Garland's nomination to the Supreme Court, Republicans have mounted an equally important, if quieter, effort to block President Barack Obama's nominees to other federal courts, creating widespread vacancies in courts across the country.
Since taking control of the Senate in early 2015, Republicans have confirmed only 17 federal judges, a historically low number. The Senate confirmed just 11 judges in 2015, the fewest since 1960. There have been only two appellate court judges approved since Republicans took control, with seven appeals court nominations left pending. If the Senate doesn't confirm any appellate judges this year, it will have confirmed the fewest since the 1897-98 session, when there were just 25 circuit court judges nationwide, compared with 179 now.
“Historically, we're in nearly unprecedented ground here,” says Kyle Barry, director of justice programs at the liberal Alliance for Justice. “What's happening with Judge Garland is really part and parcel with how the Senate has been treating judicial nominees generally. The pace has been so historically bad, we've been seeing what amounts to outright obstruction.” [Mother Jones, 5/6/16]
Gorsuch Is A Highly Ideological Nominee Who Is Predicted To Be More Conservative Than Antonin Scalia
Gorsuch Has A “Justicial Common Space” Score To The Right Of Scalia’s. The New York Times published a graphic of current Supreme Court justices’ “Judicial Common Space” scores, a quantitative measure of a judge’s ideology:
FiveThirtyEight: Gorsuch Is A “Scalia Clone.” FiveThirtyEight’s analysis of Trump’s pick also relied on “Judicial Common Space” scores to conclude, “Ideologically, Gorsuch would almost certainly represent a reliably conservative vote and voice, restoring the tenuous balance on the court that existed before Scalia’s death”:
Ideologically, Gorsuch would almost certainly represent a reliably conservative vote and voice, restoring the tenuous balance on the court that existed before Scalia’s death. According to ”judicial common space” scores, developed by a team of political scientists and legal scholars, Gorsuch would be the most conservative justice save for the silent stalwart Justice Clarence Thomas and would sit somewhere just to the right of the ideological space occupied by Scalia. [FiveThirtyEight.com, 1/31/17]
Politico Magazine: “Trump Picks Scalia 2.0.” University of Michigan law professor Richard Primus wrote that “Gorsuch is the closest thing to the man whose death left the vacancy,” citing Gorsuch’s “deeply conservative” background:
Last spring, trying to shore up his conservative credentials for Hugh Hewitt’s radio audience, the insurgent candidate Donald Trump laid down a marker about his first Supreme Court nominee: “The ideal,” he told the host, “would be Scalia reincarnated.”
In Judge Neil Gorsuch, he’s not far from delivering on his promise. Of all the candidates Trump shortlisted for the Supreme Court, Gorsuch is the closest thing to the man whose death left the vacancy. Gorsuch may not have Antonin Scalia’s colorful persona, but he shares any number of Scalia’s other signature traits. He is highly intelligent, legally skilled, and a sharp writer. And he’s deeply conservative. In a judiciary where few judges actually have developed theories of constitutional interpretation, Judge Gorsuch has one, and by and large it is the same originalist approach that Scalia generally took. Gorsuch also shares Scalia’s basic views on any number of hot-button constitutional issues, including abortion, firearms, affirmative action, and capital punishment. All in all, you wouldn’t be far off characterizing Gorsuch as Scalia 2.0. [Politico Magazine, 1/31/17]
To read more about Gorsuch’s radical embrace of originalism and far-right record as an appellate judge, click here.
Republicans’ Obstruction Of Obama Nominee Merrick Garland Was Far More Radical Than Democrats Filibustering Gorsuch
Garland’s Nomination Expired On January 3 -- 293 Days After He Was Nominated -- Without Him Receiving A Public Hearing Or A Vote By The Full Senate. Garland’s nomination expired at the close of the 114th Congress on January 3. Garland had been nominated on March 16, 2016. UPI reported, “Garland's nomination lasted for a total of 293 days -- the longest period in Supreme Court history, by far -- without ever getting a confirmation hearing, or a hearing of any kind, from Senate Republicans.” Obama had indicated in December that Garland would return to his job as chief judge of the D.C. Circuit. [United Press International, 1/3/17; The Huffington Post, 12/15/16]
Prior To Garland, Every Supreme Court Nominee Since 1875 “Received A Vote Within 125 Days Of Nomination.” Explaining modern precedents surrounding Supreme Court nomination and confirmation norms, the Obama administration wrote on its website that “since 1875, every nominee has received a hearing or a vote” and that “since 1975, the average time from nomination to confirmation is 67 days”:
Every nominee has received a vote within 125 days of nomination.
Since 1975, the average time from nomination to confirmation is 67 days. In fact, since 1875, every nominee has received a hearing or a vote. The longest time before confirmation in the past three decades was 99 days, for Justice Thomas, and the last four Justices, spanning two Administrations, were confirmed in an average of 75 days.
The Senate has almost a full year -- more than 300 days -- to consider and confirm a nominee. [WhiteHouse.gov via Media Matters, 3/16/16]
Before The Historic Garland Blockade, The Modern Confirmation Process Routinely Involved Public Hearings And Consideration By The Full Senate. According to the Congressional Research Service, of more than 40 Supreme Court nominations made since the Senate Judiciary Committee began the practice of holding public hearings to question nominees in 1939, every nominee whose name was not withdrawn by the president received a public hearing or vote by the full Senate. Justices James Byrnes and Harold Burton were confirmed by the Senate without holding public hearings in 1941 and 1945, respectively. No Judiciary Committee action was taken on initial nominations of Justices John Harlan II and John Roberts, but both were re-nominated in short order, given public hearings, and confirmed by the Senate. In 2005, President George W. Bush withdrew his nomination of Harriet Miers before hearings could be held. In every other case, the nominee received one or more public hearings in the Judiciary Committee. [Supreme Court Nominations, 1789 - 2009: Actions by the Senate, the Judiciary Committee, and the President, Congressional Research Service, 5/13/2009]
PolitiFact: McConnell's Argument That Refusal To Fill Vacancy “Follow[s] A Longstanding Tradition” Was “Misleading” And “Not Accurate.” PolitiFact concluded that a statement McConnell made shortly after Garland was nominated that Senate Republicans were “following a longstanding tradition of not filling vacancies on the Supreme Court in the middle of a presidential election year” was “misleading” and “false.” The fact-checking site noted that there is limited precedent for a Supreme Court nomination during an election year and that the Senate “has chosen not to fill a Supreme Court seat that opens up during an election year just once in the past 100 years.” [PolitiFact, 3/22/16]
PolitiFact: “We Can't Find A Time When A Democratic Senate Refused To Hear A Republican President's Nominee” For The Supreme Court. While evaluating a claim by Reid about how Democratic-majority Senates had treated Republican presidents’ nominations to the Supreme Court, PolitiFact concluded, “We can't find a time when a Democratic Senate refused to hear a Republican president's nominee. Even if they were opposed, they allowed the nominee to come to a comfirmation (sic) vote”:
Reid said Senate Democrats “have never held up a Supreme Court nomination.”
Reid steps a little too far in saying Democrats “have never held up” a nomination. They were chiefly responsible for Bork’s failed nomination, a turning point in the political nature of Supreme Court nominations, and they at least symbolically attempted to hold up Alito’s confirmation in 2005.
However, we can't find a time when a Democratic Senate refused to hear a Republican president's nominee. Even if they were opposed, they allowed the nominee to come to a comfirmation (sic) vote.
We rate the statement Mostly True. [PolitiFact, 3/20/16]
Despite Republican Claims, No Tradition Existed Against Filling Supreme Court Vacancies During Presidential Election Years. While Senate Republicans often argued that it was improper to fill a vacancy in the politicized environment of a presidential election year, an analysis by SCOTUSblog found that the “historical record does not reveal any instances since at least 1900 of the president failing to nominate and/or the Senate failing to confirm a nominee in a presidential election year because of the impending election." SCOTUSblog listed six instances where vacancies were filled during election years; it also detailed two cases since 1900 where “presidents were not able to nominate and confirm a successor during an election year” but noted that neither case “reflects a practice of leaving a seat open on the Supreme Court until after the election”:
In the wake of the death of Justice Antonin Scalia, questions have arisen about whether there is a standard practice of not nominating and confirming Supreme Court Justices during a presidential election year. The historical record does not reveal any instances since at least 1900 of the president failing to nominate and/or the Senate failing to confirm a nominee in a presidential election year because of the impending election. In that period, there were several nominations and confirmations of Justices during presidential election years.
In two instances in the twentieth century, presidents were not able to nominate and confirm a successor during an election year. But neither reflects a practice of leaving a seat open on the Supreme Court until after the election.
On September 7, 1956, Sherman Minton announced his intent to retire in a letter to President Dwight D. Eisenhower, and he served until October 15, 1956. With the Senate already adjourned, Eisenhower made a recess appointment of William J. Brennan to the Court shortly thereafter; Brennan was formally nominated to the Court and confirmed in 1957. The fact that Eisenhower put Brennan on the Court is inconsistent with any tradition of leaving a seat vacant.
And in 1968, President Lyndon B. Johnson nominated Abe Fortas, who was already sitting as an Associate Justice, to succeed Chief Justice Earl Warren, but the Fortas nomination was the target of a bipartisan filibuster -- principally in reaction to the Warren Court's liberalism and ethical questions about Fortas, although objections were certainly also made that it was inappropriate to fill the seat in an election year. That filibuster prompted Homer Thornberry, whom Johnson nominated to succeed Fortas as an Associate Justice, to withdraw his name from consideration in October 1968, because there was no vacancy to fill. Moreover, the failure to confirm Fortas as the Chief Justice did not leave the Court short a Justice, because Chief Justice Earl Warren remained on the bench. [SCOTUSblog, 2/13/16]
Media, However, Largely Ignored GOP’s Radical Blockade Of Garland
Major Broadcast News Programs Devoted Less Than Six Minutes Over A Six-Month Period To The GOP’s Radical Tactics. According to a study by Media Matters, flagship news programs on CBS, NBC, and ABC spent a total of less than six minutes in the six months following Garland’s nomination discussing or reporting on Garland or the Supreme Court vacancy:
[Media Matters, 10/7/16]