Democrats vs. Reality on SCOTUS Nomination
DEMOCRATS VS. REALITY ON SCOTUS NOMINATION
DEMOCRATS: President Trump’s nominee could overturn the Affordable Care Act.
REALITY: Justice Anthony Kennedy voted to strike down the Affordable Care Act. Even if the same case were to come before the Court, and Justice Kennedy’s replacement voted the same way, the law would still be upheld, because the same five-Justice majority that upheld the law is still on the Court.
DEMOCRATS: President Trump’s nominee could gut pre-existing condition protections.
REALITY: A bipartisan majority of Congress, including leadership in both chambers, and President Trump support pre-existing condition protections. And the same five-Justice majority that upheld the Affordable Care Act last time is still on the Court. Those laws are not in danger.
DEMOCRATS: The Senate should wait until after the midterm elections to vote on a nominee.
REALITY: The “Biden Rule” was always about presidential election years, not midterm election years. In fact, as recently as 2010, the Senate voted to confirm Justice Elena Kagan in a midterm election year.
DEMOCRATS: Justice Kennedy voted certain ways, his replacement should do the same.
REALITY: The views, judicial philosophies, opinions and rulings of a retiring justice have never been a factor in the consideration of his or her replacement. In fact, it’s notoriously difficult to predict how a nominee will decide specific cases on the bench. Who could have predicted that Justice Scalia would overturn laws banning flag-burning? Trying to predict how a Justice will rule is a fool’s errand, and claiming that specific legal opinions of the retiring justice are in jeopardy is nothing more than a scare tactic.
DEMOCRATS: Any nominee should commit to supporting a specific ruling or policy outcome.
REALITY: As famously stated by Justice Ruth Bader Ginsburg during her confirmation process, and reaffirmed by every sitting Supreme Court Justice, “A judge sworn to decide impartially can offer no forecasts, no hints, for that would show not only disregard for the specifics of the particular case, it would display disdain for the entire judicial process.” This is known as the “Ginsburg Standard.”
DEMOCRATS: Special interest groups shouldn’t get to choose a Supreme Court Justice.
REALITY: President Trump provided the American people an unparalleled opportunity to consider what types of judges he would nominate by releasing a list of potential nominees from which he would choose, which has since been updated and from which he has pledged to choose the nominee. This historic level of transparency, and the American public weighing in through the election of President Trump, show that the argument that the process is being dictated by special interests has no merit.
DEMOCRATS: The nominee shouldn’t be a conservative, but a ‘moderate’ in Justice Kennedy’s mold.
REALITY: Judges shouldn’t be classified as “moderates” or “conservatives” or “liberals.” Judges should apply the law as it is written regardless of their personal political preferences. While Democrats look for judges who will impose their policy preferences, Republicans want judges who will rule according to the law, as Justice Kennedy did. That is the type of nominee Senate Republicans will support.
DEMOCRATS: A Supreme Court Justice needs more than a bare majority of the Senate favoring confirmation.
REALITY: It was former Senate Majority Leader Harry Reid’s 2013 decision that opened the door to a lower vote threshold in the Senate to confirm judges. This reality is simply the result of Democrats’ own decision.
DEMOCRATS: Senate should wait to confirm President Trump’s nominee until after the Mueller investigation is complete.
REALITY: No matter how much the Democrats want to imply to the contrary, it has been publicly reported on several occasions that President Trump is not under investigation. Democrats tried to make the same disingenuous argument during the Gorsuch confirmation, yet Gorsuch was still confirmed with the support of three Democrats. Furthermore, President Clinton was in a more precarious situation when he nominated Justice Breyer in May 1994 during the Whitewater Investigation. Special prosecutor Robert Fiske had President Clinton’s documents under a grand jury subpoena when the nomination was made. Senate Democrats did not argue that President Clinton should not be able to make a Supreme Court appointment.