On Sunday, California governor Jerry Brown slammed Senate Majority Leader Mitch McConnell’s statement that the Senate should wait until after the presidential election to fill the vacancy on the Supreme Court left by the death of Justice Antonin Scalia.
Brown weighed in on Facebook: “Couldn’t Mitch McConnell have the decency to at least wait until the funeral before playing cynical politics with this vacancy. Such obstruction and sheer arrogance is unconscionable and deserves the condemnation of all Americans.”
He doubled down on Twitter:
Couldn’t @SenateMajLdr have the decency to wait until the funeral before playing cynical politics. Such obstructionism must not stand.
— Jerry Brown (@JerryBrownGov) February 14, 2016
McConnell had responded on Saturday to the news of Scalia’s death: “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president.” He was echoed by Judiciary Committee Chairman Charles E. Grassley (R-IA), who controls the committee schedule for handling nominees. Grassley posited:
The fact of the matter is that it’s been standard practice over the last nearly 80 years that Supreme Court nominees are not nominated and confirmed during a presidential election year. Given the huge divide in the country, and the fact that this president, above all others, has made no bones about his goal to use the courts to circumvent Congress and push through his own agenda, it only makes sense that we defer to the American people who will elect a new president to select the next Supreme Court justice.
Political analyst John Dadian told ABC 10 San Diego, “Jerry Brown is totally off base on that comment because both parties are making comments. I don’t think any comment so far has been inappropriate from leaders of either party. My question to him would be, would you feel the same about Hillary Clinton and Harry Reid? They made the exact same comments, just from a different point of view.”
Ironically, history reveals the hypocrisy of Brown and other Democrats insisting on a speedy nomination and confirmation, who include presidential candidate Hillary Clinton, Senate Minority leader Harry Reid, Senator Patrick Leahy, the ranking Democrat on the Judiciary Committee, and DNC National Committee Chairwoman Debbie Wasserman Schultz, according to the Washington Times.
In August 1960, the Democrat-controlled Senate passed a resolution, S.RES. 334, “Expressing the sense of the Senate that the president should not make recess appointments to the Supreme Court, except to prevent or end a breakdown in the administration of the Court’s business.”
David Bernstein explained in the Washington Post: “Each of President Eisenhower’s SCOTUS appointments had initially been a recess appointment who was later confirmed by the Senate, and the Democrats were apparently concerned that Ike would try to fill any last-minute vacancy that might arise with a recess appointment. Not surprisingly, the Republicans objected, insisting that the Court should have a full complement of Justices at all times. Of course, the partisan arguments will be exactly the opposite this time.”
The Democrats’ move was likely prompted by President Eisenhower’s recess-appointment of William Brennan to the Supreme Court in October 1956, just before the presidential election.
Politico reported in 2007 that Senator Chuck Schumer, who sat on the Senate Judiciary Committee and is now the Democrats’ future leader in the Senate after 2017, told the American Constitution Society convention in Washington, “We should reverse the presumption of confirmation. The Supreme Court is dangerously out of balance. We cannot afford to see Justice Stevens replaced by another Roberts, or Justice Ginsburg by another Alito.”
Politico added that Schumer said confirmation hearings were meaningless; that a nominee’s record should be weighed more heavily than rhetoric; and that “ideology matters” and people should “take the president at his word.”