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NBC Meet the Press’ Chuck Todd said there’s a degree of hypocrisy to the Democrats’ assertion that the Republicans have a constitutional duty to have hearings and vote on President Barack Obama’s Supreme Court nominee.
Senate Republicans have declared that they will not even hold hearings on Obama’s pick, Merrick Garland, chief judge of the federal court of appeals for the D.C. Circuit. Minority Leader Harry Reid, D-Nev., has argued that Republicans’ behavior is a dereliction of the Senate’s constitutional duty to "advise and consent" the president on his nominee.
But on Meet the Press, Todd presented Reid with a clip from 2005, in which Reid said, "Nowhere in that document (the Constitution) does it say the Senate has a duty to give presidential nominees a vote."
Todd, who also asked Majority Leader Mitch McConnell to explain his own clash with past positions, asked Reid what changed.
"You have to look at what has happened," Reid replied. "We have never held up a Supreme Court nomination. Since 1900 in a lame-duck session, there have been six that have all been approved."
Reid’s claim that the Democrats "have never held up a Supreme Court nomination" gave Todd and us pause, so we decided to put it on the Truth-O-Meter.
Reid has a point that the degree of opposition to Garland is unprecedented, but Democrats have offered their fair share of strong opposition to Republican presidents’ nominees in recent history.
They started it!
Since the 1960s, the Senate has held a hearing for nearly every Supreme Court nominee, the exception being Harriet Miers, a 2005 George W. Bush nominee who faced opposition from Democrats and Republicans alike.
So when McConnell vowed, within hours of Justice Antonin Scalia’s death, not to even consider the yet-to-be-named replacement, it was an unprecedented degree of opposition. And, no, there’s no tradition of not nominating a justice during a presidential election year.
It’s generally accepted, though, that the modern political battle over Supreme Court seats started with Democratic opposition to Robert Bork, a Ronald Reagan nominee, in 1987, Reid's first year in the Senate. Democrats launched a massive public assault on Bork’s conservative judicial philosophy and record.
Bork did face a hearing and a Senate vote, which he lost, but his confirmation process made the rules of the game more contentious.
"The rules have been changed for the battle over this particular seat on the court," an internal Reagan administration memo read, according to Roll Call. "Maybe they have been changed for all time. We must convince the nomination handlers that the opposition has invented the tank, and we have to get out of the trenches and take the offensive."
More recently, several Senate Democrats — including Reid and then-Sen. Obama — attempted a filibuster against conservative Bush nominee Samuel Alito. The filibuster, though, was largely symbolic, as not enough senators participated to actually delay or block the vote, which resulted in Alito’s confirmation.
Reid spokesman Adam Jentleson said comparing Democratic opposition to Republican nominees with the current Republican tactics amounted to a false equivalence.
Referring to the Alito filibuster, Jentleson said, "No lay person could possibly consider this to be on the same planet as what Republicans are doing to Garland."
In his interview with Reid, Todd mentioned Democratic opposition to Bush nominee Miguel Estrada, who was up for a position on the federal appeals court for the D.C. Circuit. In 2005, Senate Democrats garnered enough votes to block Estrada's confirmation. Because Estrada was up for a federal appeals judge position, not one on the Supreme Court, this incident doesn't affect this fact-check.
Before we rule, we wanted to note a slight error in the second part of Reid’s statement that "since 1900 in a lame-duck session, there have been six (nominees) that have all been approved." We have found in a previous fact-check that since the early 1900s, there have been six Supreme Court nominees in election years, and all were confirmed. However, only one was clearly a "lame-duck" nominee, meaning the president making the nomination was no question on the way out (Reagan). The others were nominated by presidents running for re-election to serve another term (Herbert Hoover, William Howard Taft, Franklin D. Roosevelt and Woodrow Wilson, who nominated two people in 1916).
Reid said Senate Democrats "have never held up a Supreme Court nomination."
Reid steps a little too far in saying Democrats "have never held up" a nomination. They were chiefly responsible for Bork’s failed nomination, a turning point in the political nature of Supreme Court nominations, and they at least symbolically attempted to hold up Alito’s confirmation in 2005.
However, we can't find a time when a Democratic Senate refused to hear a Republican president's nominee. Even if they were opposed, they allowed the nominee to come to a comfirmation vote.
We rate the statement Mostly True.
NBC, Meet the Press, March 20, 2016
CQ Roll Call, "Supreme Showdowns: Inside The Senate Battles Over The High Court And What Awaits Obama's Nominee," March 15, 2016
PolitiFact, "Mike Honda shares accurate graphic about past Supreme Court nominations," March 16, 2016
Washington Post, "A bushel of flip-flops on approving judicial nominees," Feb. 23, 2016
New York Times, "Final Senate Vote on Alito Is Scheduled for This Morning," Jan. 31, 2006
New York Times, "Bring it on," March 16, 2016
Email interview, Reid spokesman Adam Jentleson, March 20, 2016
Congressional Research Service, "Supreme Court Nominations Not Confirmed, 1789-August 2010," Aug. 20, 2010
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