September 23, 2020

Senator Pat Toomey, Hypocrite

Senator Toomey from 2016:

I have long stated my belief that objective qualifications and adherence to the rule of law should matter more than ideology when it comes to judicial appointments. I have acted accordingly, working closely with Senator Bob Casey on filling 16 vacancies on the federal bench in Pennsylvania and supporting numerous appointments by President Obama, including his appointment of Justice Sonia Sotomayor to the Supreme Court. 

The current vacancy on the Supreme Court, following the tragic death of Justice Antonin Scalia, however, presents an unusual context. In the final year of a presidency, it is common for vacancies that arise on the Supreme Court to await the outcome of the next election. Given that we are already well into the presidential election process and that the Supreme Court appointment is for a lifetime, it makes sense to give the American people a more direct say in this critical decision. The next Court appointment should be made by the newly-elected president. If that new president is not a member of my party, I will take the same objective non-partisan approach to that nominee as I have always done.

President Obama insists that he will nominate someone for the Court. He certainly has the authority to do so. But let's be clear - his nominee will be rejected by the Senate. In addition to the normally high level of scrutiny accorded to a Supreme Court nominee, this nominee would have to pass an additional level of scrutiny, which is the question of whether he or she ought to receive a lifetime appointment this year, when one could be made with a broad public stamp of approval less than a year later. That is a standard no nominee is likely to be able to meet.

It has been less than 72 hours since Justice Scalia's passing. There has already been too much politicking around the issue of his replacement. This decision should not be rushed, and it should not be made amid the clamoring of a presidential election season. We should honor Justice Scalia's legacy, and we should put off a decision on his replacement until the newly-elected president can make his or her choice. [Emphasis added.]

And here's Sen. Toomey this week:

Four years ago, I noted that my decision to oppose moving forward with the Supreme Court confirmation process for Judge Merrick Garland was related to the circumstances present at the time.[1]

In 2016, the White House and the Senate, which share equally the constitutional authority for filling a Supreme Court vacancy, were controlled by different parties. When power is divided during a presidential election year, the Senate’s general practice has been to leave open a Supreme Court vacancy so that the voters may speak and possibly resolve the disagreement created by the division.[2]Such practice has been emphatically endorsed by Senate Minority Leader Chuck Schumer[3](D-N.Y.), and even the current Democratic nominee for president, former Senator and Vice President Joe Biden.[4] Republicans were following this Senate practice, and the Biden-Schumer approach, when we exercised our constitutional prerogative not to fill the 2016 vacancy.

The circumstances surrounding the current vacancy are, in fact, different. While there is a presidential election this year, the White House and the Senate are currently both controlled by the same party. The Senate’s historical practice has been to fill Supreme Court vacancies in these circumstances.[5] This is also a view Democrats once held. We know this because every single Democratic senator pushed for Judge Garland’s confirmation and told anyone who would listen that if Democrats controlled the Senate—that is, if they were in the position that Republicans are in today—they would have confirmed him. Are we now supposed to operate by two different sets of rules that systematically advantage the Democrats?

The difference between these Senate practices makes perfect sense. When divided government creates tension between the two organs responsible for filling a position on the Supreme Court, it is completely justifiable to leave open a vacancy until the voters have had a chance to speak. In 2016, the voters spoke by electing a Republican president and a Republican-controlled Senate. In 2018, the voters expanded the Republican majority in the Senate. Since the voters resolved the tension between the White House and the Senate, there is no reason to delay filling this vacancy.

I will evaluate President Trump’s nominee to replace Justice Ruth Bader Ginsburg based on whether the nominee has the character, intellect, and experience needed to serve on our nation’s highest court. These are the same objective, non-partisan criteria that I have used to evaluate judicial nominees under both President Obama and President Trump. Based on these criteria, I supported President Obama's nomination of then-Judge Sonia Sotomayor to the U.S. Supreme Court and voted to confirm almost 70 percent of the judges nominated by President Obama and considered by the Senate during my time in office. If the person President Trump nominates also meets these criteria, I will vote to confirm this nominee.

You'll note the not-so subtle shifting of the criteria over the last 4 years. I bold/italicized the goal post moving for clarity. Four years ago, the criteria was simply "in the final year of a presidency." Now, suddenly, the criteria has shifted conveniently to support whatever the GOP wants to do.


Toomey's also playing fast and lose with his footnotes. For example, do you see that little "3" in the 2020 statement? It leads to this text on Toomey's page:

3“[F]or the rest of this president’s term … I will recommend to my colleagues that we should not confirm a Supreme Court nominee EXCEPT in extraordinary circumstances.” Senator Chuck Schumer, a year and a half before the end of President George W. Bush's term, American Constitution Society, July 27, 2007.

There's almost always something interesting when you see what's behind an ellipsis. What's left out? Here's the entire passage:

[F]or the rest of this President’s term and if there is another Republican elected with the same selection criteria let me say this:


We should reverse the presumption of confirmation.  The Supreme Court is dangerously out of balance.  We cannot afford to see Justice Stevens replaced by another Roberts; or Justice Ginsburg by another Alito.


Given the track record of this President and the experience of obfuscation at the hearings, with respect to the Supreme Court, at least:  I will recommend to my colleagues that we should not confirm a Supreme Court nominee EXCEPT in extraordinary circumstances. [Toomey omitted text emphasized]

Indeed, Senator Shumer had an explanation for his 2007 statement:

What I said in the speech given in 2007 is simple: Democrats, after a hearing, should entertain voting no if the nominee is out of the mainstream and tries to cover that fact up. There was no hint anywhere in the speech that there shouldn’t be hearings or a vote. Only that if after hearings and a vote, Democrats determined that the nominee was out of the mainstream and trying to hide it, they should have no qualms about voting no.

Now go look at what Toomey chose to show you in those paragraphs. Very different, no? He even mentions "hearings" a courtesy Merrick Garland was not given.

In any case this is all beside the point. Toomey wants you to think about "confirmation" and forget that he wouldn't even vote to allow hearings or moving the confirmation to the Senate floor for Merrick Garland.

The Democratic Party arguments he's using to paper over his hypocrisy are about confirming, not blocking hearings/votes.

Shifting the goal posts = Pat Toomey hypocrisy.