Sounds like pretty good advice, huh? Thankfully, Chuck Schumer has gone on record on this issue, insisting to the American Constitution Society that the Senate not only has the right but the duty to block Supreme Court nominees from a lame-duck President. Only with an extraordinary nominee should the Senate confirm such an appointment, Schumer insists (via Grabien and Gary Gross):
Of course Schumer aimed this at George W. Bush, but note that this speech took place in mid-2007, when Bush still had 18 months left in his presidency. That’s almost twice as much as Barack Obama has left in his own, and both presidents appointed two members to the court. Schumer complains about the supposed extremism of the two appointments, but Republicans can easily make the same complaint about both of Obama’s appointments. Gander, sauce … some assembly required.
The only differences between then and now are the party that controls the White House, and the small allowance Schumer holds out for potential cooperation. If an extraordinary candidate who could pass Democrats’ standards for “mainstream” came before the Senate for confirmation, then Schumer says they could consider approving him or her. Republicans are insisting that they won’t confirm anyone regardless of whom Obama appoints, which functionally amounts to the same threat Schumer made in mid-2007 but is a little harder to sell as a reasonable stand. If Obama nominated an Alito or Roberts, why would Republicans refuse to confirm him or her? Obama has no intention of replacing Scalia with another conservative, of course, but what if Obama agreed to confer with the Republican majority to give him three acceptable options for nominees and he appointed one of them? Would they still refuse to hold hearings?
The GOP would have been smarter to take the Schumer road, but it’s a little late for that now, and it really doesn’t make that much difference. Every time someone complains that Republicans are acting unconstitutionally, offer them Schumer’s 2007 declaration — and the American Constitution Society’s approving applause.