Democrats Cross the Line on Judges | Opinion

Leave it to Michael Barone to point out to us all what should be obvious: It's the Democrats, not the Republicans, who are being hypocrites when it comes to filling the latest vacancy on the United States Supreme Court.

Up to now, all you've heard from the mouthpieces of the mainstream media and the Democratic Party is that, under rules established by the Republicans during the Obama administration, the Senate should not vote on President Donald Trump's nomination of a judge to succeed Justice Ruth Bader Ginsburg this close to a presidential election.

This is wrong on many fronts. First, there is no such rule, at least none formally adopted by the Senate as part of its procedures. Second, any such rule would conflict with the president's Article II authority in the Constitution to nominate members of the High Court. Third, the last time a nominee was confirmed close to an election when the presidency and Senate were controlled by different parties was in the late 19th century.

There's a lot more to it than that, but you get the idea. In this case, with the GOP and the presidency both in the hands of the Republicans, it is natural, even essential that both move to nominate and confirm a new Justice as quickly as possible. Leave it to Barone, who knows more than just about anyone else writing today about American politics that "Democrats are the ones being inconsistent."

"If you think a president's nominee is entitled to a vote from an opposition Senate, then a fortiori, you must think the nominee is entitled to a vote from the [president's own] party's Senate," he wrote correctly. The hypocrites in this instance are every current Democrat in the U.S. Senate who demanded the GOP majority allow the confirmation of Merrick Garland to the High Court following the untimely death of Associate Justice Antonin Scalia.

Those like Minority Leader Chuck Schumer, who demanded Garland get a vote and are now trying to find a way to block the Trump nominee—expected to be announced at 5 p.m. Saturday—are playing a desperate political game designed to convince their funders and their base that they're on top of the situation.

Schumer and Pelosi
U.S. House Speaker Nancy Pelosi (D-CA) and Senate Minority Leader Chuck Schumer (D-NY) walk together following ceremonies honoring late U.S. Supreme Court Justice Ruth Bader Ginsburg at the U.S. Capitol on September 25, 2020 in Washington, D.C. Jonathan Ernst/Getty

There's little they can do to stop the process from moving forward. That's because former Senate majority leader Harry Reid decided to abolish the filibuster for judicial nominations below the level of the Supreme Court. That allowed Barack Obama and the Democrats to pack the nation's second most important court—the U.S. Court of Appeals of the D.C. Circuit—with judges who favored their view of the Constitution. Once in the majority, and to no one's real surprise, the GOP went on to abolish the filibuster for nominees to the High Court as well.

The Democrats, whose frustration is causing them to lash out, are promising to leave no stone unturned in their attempt to upend Trump's coming nomination. It's almost certain they'll find ways to slow its progress through the Senate Judiciary Committee and on the Senate floor, perhaps in hopes some last-minute bombshell might delay the vote until after the Nov. 3 election. House Speaker Nancy Pelosi has threatened to launch impeachment proceedings against the president if he moves forward—a further lowering of the bar her party will live to regret—while other members of the House are contemplating the introduction of legislation reducing the tenure of a Supreme Court Justice to 18 years.

That last idea would require a constitutional amendment, something its proponents seem not to have figured out. If they wanted to be clever, they could perhaps enact a law saying Justices could continue to serve but could no longer be paid after 18 years—which would be within Congress's purview but would likely be ruled unconstitutional.

The most damaging threat, one that many Democrats have made, is the one that involves "packing the Court." Fearful of losing decisions on controversial issues like abortion, health care, unionization, taxes and gun rights by 5-4 or 6-3 margins for at least the next few years, there are some calling for the size of the Court to be increased to twelve or sixteen members, which could be accomplished by a change in the statute and would not require a constitutional amendment.

Again, the hypocrisy of this proposal is staggering. Back in the 1990s, Republican House majority whip Tom DeLay proposed that the House take up the impeachment of several federal judges who had issued rulings that were, in his opinion and the opinion of others, outrageous. For this DeLay was slammed by the liberal press and by the Democrats who attempted to unduly influence the independence of the judiciary. Yet many of those who complained about that then are cheerleading, if silently, the talk of creating an insurmountable liberal bloc on the Supreme Court that will lock in as constitutional anything Democrats from Joe Biden to Bernie Sanders to Alexandria Ocasio-Cortez can come up with. If America ever does become a "banana republic," as some liberals have charged it has become under President Trump, it will be because the progressives first took control of the Court by special means and not through the exercise of the democratic process.

Newsweek contributing editor Peter Roff has written extensively about politics and the American experience for U.S. News and World Report, United Press International, and other publications. He can be reached by email at RoffColumns@GMAIL.com. Follow him on Twitter @PeterRoff.

The views expressed in this article are the writer's own.

Democrats Cross the Line on Judges | Opinion | Opinion