Nominating a Supreme Court Justice in an Election Year, Part II Principles vs. Politics for the Democrats

When President Obama nominated Judge Merrick Garland to the Supreme Court, he made it clear he was putting principles above politics. According to a transcript of Obama’s remarks in the Washington Post, here are some quotes from his remarks:

“At a time when our politics are so polarized … this is precisely the time when we should play it straight.”

“I simply ask Republicans in the Senate to give [Judge Garland] a fair hearing and then an up-or-down vote. If you don’t, then it will not only be an abdication of the Senate’s constitutional duty, it will indicate a process for nominating and confirming judges that is beyond repair.”

“I have fulfilled my constitutional duty. Now it’s time for the Senate to do theirs.”

“I hope that they’ll act in a bipartisan fashion. I hope they are fair.”

The title of a Dallas Morning News editorial captured how supporters praised Obama’s actions: “A Masterful Obama Again Schools Critics on the Powerful Politics of Taking the High Road“.

Part of the scientific method involves looking for alternative explanations or disconfirming evidence. In the previous blog, I tried to use this process on the stated principles behind Republican preemptive resistance to considering Judge Garland’s nomination. The Democrats’ principles and practices should be subject to the same kind of test.

On at least two occasions, Senate Democrats have threatened to take the same kind of position the Republicans are taking. Vice President Joe Biden (as Senate Judiciary Chairman in 1992) and Senator Charles Schumer (as a member of that Committee in 2007) preemptively sought to discourage consideration of potential upcoming appointments.

At the end of the Supreme Court’s term in June 1992, Biden made the longest Senate speech of his career about the history of Supreme Court appointments. He suggested, if any justices died or retired over that summer, that President Bush not nominate a successor. If he did, “the Senate Judiciary Committee should seriously consider not scheduling confirmation hearings on the nomination until after the political campaign is over.” Such a result would not be partisan positioning by Biden’s party: “It would be our pragmatic conclusion that once the political season is under way, and it is, action on a Supreme Court nomination must be put off until after the election campaign is over.”

Biden’s threat was moot. The Court maintained its traditional good health and determination to live through the November elections.

Democratic Senator Charles Schumer, during the Supreme Court’s recess in July 2007, reflected on how the Senate had been “duped” and “hoodwinked” in the process of approving Chief Justice Roberts and Justice Alito in Fall 2005. In Schumer’s speech to the American Constitution Society, even though the next election was over 15 months away, he recommended that the Senate “should not confirm a Supreme Court nominee EXCEPT in extraordinary circumstances.” After reflecting on the changes in the Court from the two new appointees, he concluded, “Consider the Constitutional harm and ‘dramatic departures’ that are in store if those few are joined by just one more ideological ally. I will do everything in my power to prevent that from happening.”

Once again, all nine justices maintained their health, faculties, and jobs through the election, so no action followed Senator Schumer’s threat.

I have no way of knowing whether Obama, Biden, Schumer, other Democratic leaders, the Dallas Morning News, or anyone else believes Obama has placed principle above politics or whether the principle is merely a pragmatic way of justifying the political position of the moment. Likewise, I have no opinion on whether McConnell, Grassley, Ryan, or other Republicans are taking their contrary position because of honestly-believed principles or cynically-calculated tactics for achieving their ends. Probably, there are a whole range of beliefs in each camp.

My point is whether someone is engaged in “spin” or expressing fundamental beliefs, the reasoning can appear the same. When someone tries to influence us, whether it is about the effectiveness of our leaders or buying a car, we (along with, I imagine, many of the people trying to influence us) will tend to believe what we already believe, accepting supporting information, and discounting contrary information. Their job is to convince us, and ours is to decide the truth. Throughout our lives, we need to be open-minded and thinking critically about what we are told, so we can make a good evaluation on the way to the best decision.

Author of Thinking in Bets and How to Decide. Co-founder of The Alliance for Decision Education

Author of Thinking in Bets and How to Decide. Co-founder of The Alliance for Decision Education