By: Rick Maranon, FOX23 News
Updated: September 21, 2020 – 2:35 PM
WASHINGTON — Oklahoma’s two U.S. Senators could find themselves bucking a precedent they worked so hard to protect in 2016 with other Senate Republicans, but Democrats aren’t blameless in how election-year Supreme Court nominations have turned into such a political debate.
Four years ago, Oklahoma senators Jim Inhofe and James Lankford defended the position that a confirmation hearing for a Supreme Court justice should be put off until the Presidential election that was happening was over, but that position was not new Senate policy in 2016.
In fact, that argument was actually strongly enforced by 2020 Democratic Presidential Nominee Joe Biden when he was chairman of the Senate Judiciary Committee in the 1980s and 1990s.
The Congressional Research Service documented in a 1997 report what was considered a pre-emptive threat Biden made to then-President George H.W. Bush in 1992 saying a Supreme Court seat would not fall victim to the politics of an election year. Biden threw out multiple nominations to Federal courts in 1988 and 1992.
One of the nominees who never got an election year hearing was current Supreme Court Chief Justice John Roberts. Roberts was up for an appellate court seat many felt he was more than qualified for. In 1992, Biden’s gamble would pay off when Bill Clinton would defeat Bush, and Clinton would appoint judges beginning in 1993.
In 2016, Republicans had a similar moment when President Donald Trump defeated Hillary Clinton, and conservatives were allowed to nominate another conservative justice to replace the late-Antonin Scalia who President Barack Obama wanted to replace with moderate-leaning appellate court judge Merrick Garland.
FOX23 went back and listened to video from Senators Lankford and Inhofe about why they believed no confirmation hearing should’ve taken place during the 2016 campaign, but Lankford indicated Garland may have received a hearing after the 2016 November election was over if Clinton had won.
On election night 2016, after Trump declared victory, Lankford said no confirmation hearing for Garland was going to happen at all.
The passing of Justice Ruth Bader Ginsburg is what could have Senate Republicans like Lankford and Inhofe breaking the more than 140-year precedent they fought so hard to defend back in 2016.
Trump plans to nominate Ginsburg’s replacement at the end of the week, just over a month from Election Day.
Senate Majority Leader Mitch McConnell (R-KY) has indicated the Senate will move quickly to confirm Ginsburg’s successor before the election. Doing so would force Lankford and Inhofe to at least partially ignore the words they said in 2016 by confirming someone within the home-stretch of a Presidential campaign.
The only difference between the 2016 and 2020 campaigns, aside from the candidates, is the chance that Trump could still be elected to serve four more years. Republicans argued that Obama was in the final months of his eight years in office when he nominated Garland, but if Trump is re-elected, he will have four more years to dictate policy and nominate other people for seats on judicial benches across the country.
Because Obama’s time was running out in 2016, Inhofe confidently said to FOX News at the time, “At this point, he could nominate George W. Bush, and I wouldn’t confirm him” while insisting the next president pick who fills the seat because he was certain there was no chance of Obama nominating someone the following year.
Instead of taking a gamble, like Biden did in 1992 against then-President Bush, Republicans, for now, appear eager to break decades of precedent to get one more conservative justice on the Supreme Court while they legally have power given to them by the American people in previous elections.
McConnell pointed out in previous remarks that the American people increased the Republican majority in the U.S. Senate in the 2018 mid-term elections as a sign that they have confidence in the way Republicans have been running the Congressional upper chamber.
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