There is a growing debate over whether or not Mitch McConnell should discard the committee process on President Trump’s Supreme Court nominee and simply take the vote to the floor of the Senate. Here’s why I support a middle ground position on that question.
Contrary to popular belief, there is no constitutional requirement for the Senate Judiciary Committee to hold hearings on any nominee by the President. This is true of all positions, whether they be political appointees to run the federal bureaucracy or judicial appointees at the district, appellate and Supreme Court levels.
Here is the text of the Constitution’s Appointments Clause in its entirety:
“… and [the President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”
Not a word in there about committees or hearings. The role of the Senate is to provide its “advice and consent,” on nominations, nothing more. That advice and consent can take any form that has the approval of a majority of current senators.
The committee process is nothing more than a construct of Senate rules and tradition. Democrats made clear they don’t give a damn about those things when Harry Reid and Chuck Schumer led the effort to end the filibuster for judicial nominees, a senate rule and tradition that had stood for well over a century. Schumer and other Democrat senators have also made clear that they plan to end the filibuster entirely the next time they gain a majority in that chamber.
So, to hell with Senate rules and traditions.
The nation’s voters have chosen to give the GOP a clear Senate majority in each of the last three election cycles, expanding that majority in 2018 after the despicable display the Democrats put on in the Judiciary Committee hearings related to Brett Kavanaugh. The corrupt news media studiously ignores the fact that each and every Democrat senator who participated in the smearing of Kavanaugh during those 2018 hearings and was up for re-election in a close race that year was defeated. It was the clearest statement of disapproval the voters could send of Democrat tactics – which included the active subornation of perjury by Christine Blasey Ford and others – that held the nation hostage for a week during those hearings.
Indeed, the Democrat conduct in Supreme Court nomination hearings has become increasingly depraved and demented related to every GOP presidential appointment since 1987, when Joe Biden – then chairman of the Judiciary Committee – led the dishonest smearing of Reagan nominee Robert Bork. Emboldened by that success, Biden-led Democrats conducted their “high-tech lynching” of Clarence Thomas in 1991, again including the active subornation of perjury by Anita Hill. Things have only gone downhill from that low moment.
If he has the votes to confirm the Trump nominee, why should Mitch McConnell allow the Democrats to put the nation and the nominee through what would certainly become another Kavanaugh-like smearing conducted by the likes of Kamala Harris and Cory Booker and Dianne Feinstein?
Some will contend that the cancellation of hearings would lead the Democrats to declare the nominee to be “illegitimate.” Well, hell, they did that with Kavanaugh. Who can forget Nancy Pelosi and Jabba the Nadler promising to impeach Kavanaugh after they obtained their House majority in 2018? We should not forget that kind of thing so quickly and easily.
Besides, Pelosi and Chuck Schumer and Biden himself have already made it perfectly clear that they are going to smear the new Trump appointee as illegitimate regardless of the circumstances surrounding her confirmation. The tactic is going to be the tactic regardless of how the process is run.
With the announcements by Cory Gardner, Lamar Alexander and Rand Paul that they will support whatever confirmation process McConnell chooses to implement in the case of this nominee, it is now clear that the GOP has at least 50 votes to confirm the new justice before Election Day. Those votes, plus the tiebreaking vote by Vice President Mike Pence, are all McConnell needs to put this nominee on the Court.
So, why schedule committee hearings at all, given the short time frame and the pressing need to have a fully-constituted Supreme Court that could end up deciding the ultimate outcome of the presidential election?
Here’s why you schedule an initial hearing: To give the Democrats the chance to hoist themselves on their own petard. Democrats have all sorts of tools under Senate rules to try to delay the process. McConnell should work with Chairman Lindsey Graham to quickly schedule an initial hearing, and at the same time make it crystal clear that he will simply bring the nomination to the floor of the Senate if Democrats try to delay that process. Give them one chance to conduct themselves with the dignity that used to be expected from a U.S. senator, but give Graham the full authority to adjourn the process the moment the Democrats inevitably begin their effort to smear the nominee.
When that happens – and it would happen – McConnell should then immediately schedule a floor vote and deny the Democrats their circus.
Yes, the howls of outrage from the Democrats and their media toadies would be loud and fierce, but they are going to be loud and fierce regardless. This nomination and confirmation are an exercise in political power. For once, McConnell and his GOP caucus should exercise that power with no quarter given to their Democrat “friends.”
That is all.
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