Another Hail Mary Attempt from the Left to Deny Trump His SCOTUS Pick

June was a tough month for the left. It began with a successful North Korean summit, followed by news that the economy is hotter than even the current heat wave embracing much of the country. The Supreme Court handed President Trump a win on the travel ban on nationals from terrorist-heavy countries, along with a handful of other decisions which are displeasing, to say the least, to Democrats.

The month culminated with Supreme Court Justice Anthony Kennedy’s imminent retirement, providing the president with his second SCOTUS nomination in as many years. Liberal heads are exploding on cable news shows and on the sets of unfunny late night comedy shows. Last week Trump was a Nazi, this week he is overturning Roe v. Wade and Brown v. Board of Education, sending America back into the dark ages.

The left is now trying to disqualify any of Trump’s potential court nominees. Senator Elizabeth Warren is front and center in the resistance saying the president’s “short list of Supreme Court nominees was hand-picked by right-wing extremists who want to criminalize abortions and punish women who have them.” Hey, at least it wasn’t a bunch of Nazis (left-wing extremists, by the way) suggesting nominees, just “right-wing extremists.” Not yet, at least.

The academics have weighed in, too, with the able assistance and partnership of the anti-Trump media. George Washington School of Law Professor Paul Schiff Berman opined in the New York Times about how to derail, or at least delay, the president’s court nomination, scheduled to be announced next week.

The professor’s first tactic argues that Kennedy’s, “replacement should not be confirmed until after the midterm elections this fall” since the same argument was, “used to stymie President Barack Obama’s nomination of Merrick Garland to the Supreme Court in 2016.”

Unfortunately, the professor forgets that these precedents were set years ago, by Democrats. Call them the Biden-Schumer rules, where Democrats began the practice of stymie-ing presidential SCOTUS nominations.

In 1992, then Senator and Chairman of the Senate Judiciary Committee Joe Biden said that then-President George H.W. Bush should “not name a nominee until after the November election is completed.”

Senator Chuck Schumer echoed this approach, recommending that, “no George W. Bush nominee to the Supreme Court should be approved, except in extraordinary circumstances, 19 months before a new president was set to be inaugurated.”

But Trump isn’t on the ballot in November. It’s an election year for Congress, not the president. Still, the argument will be made by the media and the left. Just remember the Biden-Schumer rules.

Professor Berman then offered a second reason why President Trump can’t make a SCOTUS nomination. “People under the cloud of investigation do not get to pick the judges who may preside over their cases.” Actually the special counsel investigation results go the deputy Attorney General who then decides whether to release the results or not. The Supreme Court doesn’t preside over the Robert Mueller investigation.

If high crimes and misdemeanors are alleged, the remedy is Congress, not any court, including the Supreme Court. Impeachment is the constitutional mechanism for dealing with presidential crimes and the Senate can vote to remove the president from office if they so desire. It’s members of Congress who would preside over Trump’s case, if there is one, and Trump does not appoint members of Congress.

For President Trump to find himself before a criminal court, he must be indicted first, and the Office of Legal Counsel from past administrations declares that criminal indictment of a sitting president “is a categorical no.” The Constitution provides the appropriate remedy.

Out of curiosity, have other presidents made SCOTUS nominations while “under the cloud of investigation”? Precedent is a concept that I assume a law professor would find useful. Let’s take a stroll down memory lane.

President George W. Bush made two SCOTUS nominations while his administration was being investigated by Special Prosecutor Patrick Fitzgerald, appointed in 2003. John Roberts and Samuel Alito were both nominated to SCOTUS in 2005. Fitzgerald’s case against Scooter Libby was still active in late 2005, during and after both nominations. Both nominees were confirmed despite the president and his administration being, “under the cloud of investigation.”

President Bill Clinton was “under the cloud of investigation” beginning January 1994, when Attorney General Janet Reno appointed Robert Fiske as special prosecutor to investigate Whitewater and the death of Vince Foster. Yet Clinton was able to nominate Stephen Breyer to SCOTUS in May 1994 followed by a confirmation vote of 87 to 9. Back in the day, when the opposition party actually consented to a president having a SCOTUS justice of his choosing. And despite the president being under investigation.

President Reagan, going back even further, was also “under the cloud of investigation” beginning in December 1986, when Lawrence Walsh was appointed independent counsel to investigate the Iran-Contra affair. This investigation didn’t wrap up until 1993. Reagan nominated Anthony Kennedy, who is now retiring, to SCOTUS in 1987, bringing this discussion full circle. Kennedy was confirmed 97-0, a far cry from what we will see with any Trump nomination.

How about that? Three recent past presidents made four SCOTUS nominations while “under the cloud of investigation” by some combination of special or independent counsels or prosecutors. These nominees were all confirmed and I don’t recall journalists or law professors caterwauling that such a nomination, “will be a stain on the legitimacy of this nomination, on the performance of whomever is confirmed and, even, on the Supreme Court itself” as Professor Berman asserted.

Only with Donald Trump are these important issues. Just as being tough on border security was fashionable during the Obama and Bush years, but not during the Trump presidency.

When you hear desperate excuses, such as those above, claiming that Trump’s next SCOTUS nomination is illegitimate, just remember past precedent which blows up these arguments. It will fall on deaf ears as the left is in freefall panic over Trump’s successes and the increasing irrelevancy of the modern Democrat party. Pass the popcorn and enjoy the show.


Brian C. Joondeph, MD, MPS, a Denver based physician and writer. Follow him on Facebook,  LinkedIn and Twitter.

Image Credit: Ted Eytan, via Flickr // CC BY-SA 2.0

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