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Democrats Respect Miles’ Law

Chuck Schumer and President Obama
Sen. Chuck Schumer with President Obama on Inauguration Day 2013

Hypocrisy and politics are, if not bedfellows, at least very comfortable travelling companions.

Witness, for example, Sen. Chuck Schumer, D-N.Y. Schumer is widely considered to be next in line as the leader of the Senate Democrats, particularly if his party should regain the majority this year. After the sudden death of Supreme Court Justice Antonin Scalia this weekend, Schumer wasted no time in pushing for the sitting president to offer a nomination for Scalia’s replacement.

“The Constitution does not say a president is elected for four years but can only act and fulfill his constitutional responsibilities for three years,” Schumer said at an event in Fulton County on Monday. Many in his party have gone further, demanding that the Senate promptly act on any Obama nominee this year.

Schumer’s position back in 2007, when George W. Bush had more than a year remaining in his term, was exactly the opposite. Schumer demanded that the then-narrow Democratic majority not act on any further Bush nominations to the Supreme Court. Of course, in 2007, the scenario was purely hypothetical; there were no further vacancies on the court during Bush’s term.

Critics have been quick to raise the subject of Schumer’s 2007 remarks, but the senator insists that his stances are not inconsistent. “I simply said that everybody has the right to vote no,” Schumer said in response to the criticism. This account of his own remarks qualifies as revisionist history, at best. What Schumer actually said was “we should not confirm any Bush nominee to the Supreme Court except under extraordinary circumstances.” Presumably, such extraordinary circumstances would have been the nomination by a Republican president of someone put forth by, say, a group as liberal as MoveOn.org. That would certainly have been extraordinary.

This isn’t the only fact-fudging being undertaken by Schumer’s side of the political divide. Democrats and liberals have accused Senate Majority Leader Mitch McConnell, R-Ky., of saying Obama should not send a nominee to the Senate during the remainder of his term. This is not what McConnell actually said. What McConnell said on Saturday is pretty much what Schumer said back in 2007: “this vacancy should not be filled until we have a new President.”

Obama has the constitutional right - some would argue the duty - to nominate a candidate to fill Scalia’s seat. But the Senate is under no specific obligation to take up such a nominee at any particular time. Even if Obama nominates someone next week, the Senate is perfectly within its rights to delay a vote, or even a hearing, until after the November election.

This seems to be exactly how Senate Republicans plan to proceed. Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, has the power to block a vote in committee and has indicated he plans to use it, while McConnell has already shown himself willing and able to prevent confirmations of judicial appointments at all levels. There seems to be nothing stopping Republicans from simply letting any Obama nomination languish at least until next Thanksgiving’s turkeys are on their way to market or on the table.

At that point, if a Republican has won the White House, Obama’s nomination will be dead on arrival, just like his recently announced budget, which is likewise full of political nonstarters, and which neither house is willing to waste time siting in hearings to consider. On the other hand, if Obama nominates a genuine judicial moderate and the Democrats happen to win both the White House and a Senate majority to take effect next year, McConnell and his fellow Republicans might decide that Obama’s selection is the best deal they are going to get. In that case, they can vote to confirm the nominee before the end of the current congressional term. This latter possibility, however remote, is incentive enough for Obama to select somebody who is at least conceivably confirmable given the current Senate makeup.

Far from being anti-democratic, the Republicans’ refusal to advance a Supreme Court nominee until after the election would turn the November balloting into a national referendum on what kind of Supreme Court, and in fact what kind of government, Americans want. Obviously, they are hoping for a certain outcome - but their Democratic counterparts would do the same were their positions reversed.

Democrats’ bleating to the contrary can be viewed as a mixture of posturing for their base and simple hypocrisy. Or maybe, to be a little kinder, we can call it an invocation of “Miles’ Law.” Rufus Miles Jr., a Truman-era bureaucrat and writer, coined the famous observation, “Where you stand depends on where you sit.” In this case, where you stand depends on whether you sit on the majority or minority side of the Senate aisle and whether a president of your party sits in the Oval Office. Those positions can certainly change in nine years, as Schumer’s display of malleable principles clearly illustrates.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us” and Chapter 4, “The Family Business."

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