Schumer: It's time for Supreme Court nominees to dump the Ginsburg standard and tell us their views on legal hot buttons
Chuck, m’boy, I don’t believe that’ll be happening. Poor guy, though. This makes twice now that he’s been hobbled by a Democrat setting a judicial precedent which seemed clever at the time, only to have it detonate later right in the party’s faces.
In fairness to him, though, this isn’t the most desperate thing he’s done in his “throw everything at the wall and see what sticks” attempt to block the nominee.
This is from his floor speech yesterday a few hours before Kavanaugh was named. Turns out he’s concluded that the Ginsburg standard is outdated coincidentally right at the moment that Trump is poised to push the Court further right.
First, we have ample examples from the past several years of judges who have sworn in their confirmation hearings to respect precedent, and then reverse their stand once on the court. For example, in his confirmation hearings, then-Judge Gorsuch said that, quote,– “Precedent is like our shared family history of judges. It deserves our respect.” Two weeks ago, now-Justice Gorsuch voted to overturn 41 years of precedent in the Janus decision, relying on flimsy and fabricated legal theory. It was so flimsy, in fact, that Justice Kagan wrote in dissent that the majority overruled precedent, “for not an exceptional or special reason, but because it never liked the decision…subverting all known principles of stare decisis.”…
And there’s a second reason, maybe even more important than the principle of “I’ll follow settled law” never works, and that’s President Trump. We already know that President Trump’s nominee will be prepared to overturn the precedents of Roe v. Wade and NFIB v. Sebelius. We know that because President Trump has said so. When the president has a litmus test for his nominees, and only chooses from a pre-approved list of nominees designed to satisfy that litmus test, it is certainly not enough for a judge to prove his or her moderation by invoking stare decisis…
Considering the ample evidence that President Trump will only select a nominee who will undermine protections for Americans with pre-existing conditions, give greater weight to corporate interests than the interests of our citizens, no matter what precedent says, and vote to overturn Roe v. Wade – the next nominee has an obligation – a serious and solemn obligation – to share their personal views on these legal issues, no matter whom President Trump selects tonight.
It’s interesting which precedents he does and doesn’t focus on during his solemn disquisition in defense of stare decisis. As chance would have it, Gorsuch also voted within the last few weeks to overturn a far more famous ruling than Janus. Schumer doesn’t mention that one because doing so would force him to acknowledge that certain precedents do deserve to be binned, however belatedly. Stare decisis is a guideline but never a rule, he’d have to admit. Which leaves him nowhere on precedent as a shield for Roe.
His underlying point is true enough, though. The stare decisis tapdance that nominees have engaged in since Ginsburg’s confirmation hearing 25 years ago is a transparent charade. But it’s also a necessary charade. Semi-plausible deniability about each nominee’s ideological views is the only way to retain an element of collegiality and efficiency in this toxic, rancid process. We’re never going back to the days of 97-0 votes based purely on whether the nominee had the legal acumen to serve on the Court. (If we did, Kavanaugh would be confirmed unanimously.) The Ginsburg standard, though, lets us return to a simulacrum of that, permitting an obviously qualified candidate to be confirmed 55-45, say, in exchange for not providing any soundbites about Roe etc. that might make a yes vote even harder politically for senators.
If we didn’t play this game, we’d end up playing a slightly different one. Every nominee would insist during his or her hearing that they agree with all Supreme Court precedents, tout court. And then, once they reach the bench, they’d rule how they like anyway and insist that their minds had since been changed about certain past cases based on things they’ve recently read. Every man or woman has a right to change their mind, after all. Which game does Schumer want to play, the Ginsburg one or that one?
Watch a bit from today’s floor speech below, in which he backs off somewhat from the demand that Kavanaugh reveal his views at the hearing. He knows that won’t happen. Fortunately for him, Kavanaugh was the shortlister with the longest paper trail; there may be a clue about his views on Roe somewhere in the mountain of documents Democrats will be reviewing that can be used to make Collins and Murkowski squirm. One question I’d like Schumer to answer candidly is what his battle plan is if, hypothetically, he succeeds in flipping the centrist Republicans and borking Kavanaugh. Presumably he imagines some knock-on effect from that in the midterms for Democrats, in which defeating Trump’s nominee ends up flipping the Senate and then POTUS is forced to nominate someone more moderate next year. In reality, Republican voters’ anger at red-state Dems if Kavanaugh is borked most likely means a redder Senate. And if the Senate is more Republican next year, Trump will pay Democrats back for Kavanaugh by trying to ram Barrett or some other hardcore culture warrior down their throats. It’s really not enough for Schumer to defeat the current nominee, that is. He needs to defeat him on the specific ground of abortion and spook Trump in doing so, such that POTUS will lose his nerve on nominating a devout pro-lifer as his next nominee.
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