Justice Elena Kagan’s midterm confirmation nullifies the Democrats’ call to delay replacing Anthony Kennedy

The politicizing of the U.S. Supreme Court is one of the most tragic aspects of America’s society and culture. Democrats, reeling from the surprise retirement of Justice Anthony Kennedy, are calling on a delay in the U.S. Senate to confirm a replacement.

“Our Republican colleagues in the Senate should follow the rule they set in 2016 — not to consider a Supreme Court justice in an election year,” Senate Minority Leader Chuck Schumer said Wednesday. “Senator McConnell would tell anyone who listened that the Senate had the right to advise and consent. And that was every bit as important as the president’s right to nominate.”

It’s important to correct the record and state that Republicans did no such thing – “the rule they set in 2016” as the “Nuclear Option” was created during Harry Reid’s tenure in the Senate.

Wikipedia: The nuclear option (or constitutional option) is a parliamentary procedure that allows the United States Senate to override a rule – specifically the 60-vote rule to close debate – by a simple majority of 51 votes, rather than the two-thirds supermajority normally required to amend the rules.

Many Democrats are echoing the talking point: Sen. Dianne Feinstein, the top Democrat on the Senate Judiciary Committee, agreed with Schumer. The California Democrat said “there should be no consideration of a Supreme Court nominee until the American people have a chance to weigh in.”

At least two other Judiciary Committee Democrats, Richard Blumenthal of Connecticut and Kamala Harris of California, said they concurred with their party’s leader.

This is all very strange for two reasons.


It’s easier to evaluate the 2016 election and the impact of a change in President to the court’s structure. Avoiding the confirmation of Judge Garland was the tactic used by the GOP to give them a chance to win in November. While this stung the Democrats in a big, big way, it was all by the books and never required any bizarre votes or changes to the rules.

Delaying here until after the midterms is rooted entirely in the Democrats’ banking on a big win in November, giving them control over the confirmation process. While that may be the case, Trump will still be nominating judges and they can oppose over and over again, creating political pressure to offer up a moderate to liberal judge they’d approve of.


If there was a bad taste in the Senate over the timing of the confirmation hearings, it started with the GOP as they couldn’t stop President Obama pick in 2010. In fact, there have been several instances of the summer nominee: Obama nominated Elena Kagan in May 2010. Former President Bill Clinton nominated Stephen Breyer in May 1994. And Ronald Reagan nominated Antonin Scalia and William Rehnquist in June 1986. They were all confirmed before the election.

This will still be a challenge for the slow moving Congress and a Republican group of Senators seeking re-election, which is 8 seats.

That said, there will be GREATER pressure on liberal Democrats running to keep 25 seats.

Real Clear Politics listed the key seats up for grabs: Jeff Flake’s Arizona seat; Bill Nelson in Florida (who is losing in the polls against current Florida Gov. Rick Scott; Joe Donnelly in Indiana (facing Mike Braun); Claire McCaskill in Missouri; Nevada’s Dean Heller; Heidi Heitkamp in North Dakota (who is losing in polls against Kevin Cramer); West Virginia’s Joe Manchin and an open seat in Tennessee.

photo/ donkeyhotey



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About the Author

- Writer and Co-Founder of The Global Dispatch, Brandon has been covering news, offering commentary for years, beginning professionally in 2003 on Crazed Fanboy before expanding into other blogs and sites. Appearing on several radio shows, Brandon has hosted Dispatch Radio, written his first novel (The Rise of the Templar) and completed the three years Global University program in Ministerial Studies to be a pastor. To Contact Brandon email [email protected] ATTN: BRANDON

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