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Throwback Thursday: That Moment The NYT Said Liberals ‘Have Every Right to Resist’ Bork Nomination

by Matt Vespa     •     Townhall

Senate Democrats are trying to cast Republicans as being remiss in their constitutional duty to consider Judge Merrick Garland’s nomination to the Supreme Court (they’re not). And the mainstream media, by and large, would support that false narrative. The truth is Senate Republicans are acting no differently with these nominations concerning the politics of it all. Furthermore, The New York Times editorial board didn’t seem so aghast at Republican opposition back in the 1980s, where they openly said that Senate Democrats have “every right to resist” Robert Bork’s nomination:

…[T]he President [Reagan] chose Robert Bork and thus chose angry confrontation. For Judge Bork is not merely a conservative. He has long been a flamboyant provocateur, with a lifetime of writings to prove it. As a result, Mr. Reagan got the rancorous political battle he asked for. Appointment to the Court is a political act yet the Court’s authority depends in large measure on public confidence in its fairness and aloofness from the political cockpit. There’s something to lose when a nomination battle turns brutally partisan.

The President’s supporters insist vehemently that, having won the 1984 election, he has every right to try to change the Court’s direction. Yes, but the Democrats won the 1986 election, regaining control of the Senate, and they have every right to resist. This is not the same Senate that confirmed William Rehnquist as Chief Justice and Antonin Scalia as an associate justice last year.

Was it an election year? No. Yet, that only strengthens the current Republican position of letting the next president decide who shall fill Justice Scalia’s vacancy given that both parties are just months away from their respective conventions, where they will nominate their candidates for president and vice president. Again, let’s circle back to the Biden Rule.

Leigh captured an interesting moment where Sen. Harry Reid (D-NV) said that he agrees with the Biden Rule–and that he hopes Republicans follow it. Perhaps the outgoing senator was a bit confused about the rule, as that’s exactly what the Senate GOP is honoring. They’re not going to entertain any Supreme Court nomination, as it’s would be unfair to the nominee, the president, and the Senate. This captures the essence of what then-Sen. Joe Biden (D-DE) said in 1992 (he also chaired the Senate Judiciary Committee at the time) during the administration of President George H.W. Bush:

Should a Justice resign this summer and the President move to name a successor, actions that will occur just days before the Democratic Presidential Convention and weeks before the Republican Convention meets, a process that is already in doubt in the minds of many will become distrusted by all. Senate consideration of a nominee under these circumstances is not fair to the President, to the nominee, or to the Senate itself.

Mr. President, where the Nation should be treated to a consideration of constitutional philosophy, all it will get in such circumstances is partisan bickering and political posturing from both parties and from both ends of Pennsylvania Avenue. As a result, it is my view that if a Supreme Court Justice resigns tomorrow, or within the next several weeks, or resigns at the end of the summer, President Bush should consider following the practice of a majority of his predecessors and not–and not–name a nominee until after the November election is completed.

Senate Democrats held a press conference on Capitol Hill to shame their Republican colleagues, even bringing out other public servants, like doctors, nurses, and a heavy equipment operator, who gave rather odd comparisons that they just can’t walk away from their jobs, so the Senate GOP should do the same and consider Judge Garland’s nomination. Yeah, these aren’t legitimate comparisons, especially when the GOP took Congress during the 2014 midterms with the sole purpose of stopping Obama. Moreover, the Senate majority can do whatever it wants in this regard, as noted by the Washington Post’s Glenn Kessler. He found no situations that are similar to the current Supreme Court fight, but added that the politics surrounding the nominations remains the same:

…[I]t is also clear that politics has always played a role — and the Senate has set the rules to act as it wants. Nearly 200 years ago, the Senate made it clear that it was not required to act on a Supreme Court nomination. In periods of divided government, especially with elections looming, the Senate has chosen not to act — or to create circumstances under which the president’s nominee either withdrew or was not considered. Indeed, the patterns don’t suggest the Senate used procedures out of constitutional duty, out of deference for what the Constitution says or what previous Senates have done. Instead they used procedures based on the political circumstances of each confirmation.

It’s matter of opinion whether a refusal to consider a nominee is a dereliction of constitutional duty or walking away from a constitutional responsibility. But the Senate majority can in effect do what it wants – unless it becomes politically uncomfortable. Democrats who suggest otherwise are simply telling supporters a politically convenient fairy tale.

The point is that Senate Republicans are not violating their constitutional duty. Period. There is nothing in the Constitution that says the Senate has to consider the president’s nomination.