- Do you remember who left the Supreme Court in 2007? Who ended up replacing them? Yeah, trick question. Schumer is addressing a hypothetical third vacancy, not a real one. Keep that in mind as we dive into some of what he talks about.
- The heart of the argument is definitely about previous Bush nominees. Roberts had just proven himself to be an arch conservative—his first year on the bench was very, very conservative. This looks silly in retrospect because he has proven that he really will break the partisan mold and vote with his jurisprudence. (He also tends to err on the side of letting the legislature make laws, and it was not until 2008 that we even started having liberal laws pass all three checks before the courts.) Roberts advertised himself as a moderate with an eye for the law and the first year he did not look it. Schumer is saying they should avoid that again.
- So the case is that Bush puts forward bad appointees who seem to lie. Therefore, the reasoning goes, Democrats should block Bush appointees because the vetting process is broken under Bush.
- At no point does he argue that Bush is a lame duck or that they should wait for the next election. (Though, yes, that is how that will play out.) Schumer’s case would have made sense in 2010 if they had already had two Justices confirmed, one of whom who turned out to be different than advertised. Headlines saying that Schumer supports the GOP lame-duck rule are plainly wrong.
- He lays out exceptions, and he clearly means if they can be sure vetting works.
- Kagen and Sotomayor, have ruled as advertised. So an Obama nominee can’t be blocked on the grounds that Schumer puts forward.
- Schumer was arguing for a no vote; McConnell is saying they won’t schedule a vote. That is not the same thing.
- Schumer still fails the strong case that many liberals are making. Schumer is saying they should bow out of the confirmation process that liberals are now arguing is unequivocally sacred. But that doesn’t seem to the be the heart of the present debate anyway.
- Schumer passes the weaker case, that conservatives are trying to get around their constitutional obligation writ large because they do not like the president. The Senate has a duty to constrain the President, which is part of what makes this so galling. They could have made the case they were only taking a set of qualifications in line with the Senate’s electoral mandate and told Obama that “the ball’s in your court” very plausibly. By skipping that and going right to, “mulligan on the President because we made up some facts about history”, it undermines the electoral mandate argument from here on out.