Biden, Bork, García and Weingarten

Positioning themselves as strict Constitutionalists, teacher union leaders cry foul over a precedent that the unions helped create.

In the wake of Antonin Scalia’s untimely passing, two national teacher union leaders are in a self-righteous snit because the Republican-led Senate is remaining firm in its conviction to hold off consideration of a new Supreme Court nominee until President Obama’s successor takes office. National Education Association president Lily Eskelsen García pontificated, “… some senators are speaking and acting as if their oaths and the Constitution are only suggestions and not promises that they make – and attest they will keep – to voters. How else can we explain the downright refusal of some Senate Republicans to do their jobs when it comes to filling the vacancy on the U.S. Supreme Court?”

Not to be outdone, American Federation of Teachers leader Randi Weingarten harrumphed, “As we teach high school government students, the Constitution is crystal clear about what to do when there’s a Supreme Court vacancy: The president of the United States nominates a candidate for the bench, and the Senate provides advice and consent.” She then informs us, “The Constitution does not say the president shall nominate a justice—unless it is the fourth year of his term.”

Weingarten finishes with a flourish, “For the last seven years, Senate Republicans have attempted to block President Obama at every turn, with no regard for the damage they inflicted on American families. Their stubborn refusal to consider a nominee puts politics over responsibility and, in so doing, dishonors our Constitution….”

As the union leaders rant about the Constitution, their knowledge of recent history comes up short. First of all, as genuine Constitutional scholar Ilya Shapiro points out, no Justice has been nominated and confirmed during a presidential-election year since before World War Two. He reminds us that Justice Kennedy was confirmed in 1988, “but (a) he was nominated in the year before and (b) this was President Reagan’s third attempt to fill a vacancy that originated in July 1987.” Shapiro adds that “while some may argue that it’s somehow ‘illegitimate’ or even unconstitutional for the Senate not to provide its ‘advice and consent’ as specified under Article II, Section 2, there’s simply no basis to conclude that this provision constitutes an obligation to act on presidential nominations.”

Additionally, the modern politicization of SCOTUS was not a plot hatched by evil Republicans. In fact, it all began when Ronald Reagan nominated Robert Bork to fill a seat vacated by retiring Justice Lewis Powell in 1987. All hell broke loose in the Senate as Bork, a strict Constitutionalist, was viciously excoriated by Democratic Senators Ted Kennedy, Joe Biden and others. The vilification was a nonstop assault with every liberal group imaginable, including the NEA, piling on. At the yearly NEA convention in 1987, a teacher solemnly claimed that Bork is a “compulsory pregnancy man” and is “too conservative on race, women’s rights and reproductive freedom.” The 8,000 NEA delegates meeting in Los Angeles then voted overwhelmingly to oppose him.

With every liberal group in the country clamoring for Bork’s head, his nomination was defeated with Joe Biden, then head of the Senate Judiciary Committee, leading the way. In fact, when George H.W. Bush was running for reelection in 1992, Biden asserted, “It would be our pragmatic conclusion that once the political season is underway — and it is — action on a Supreme Court nomination must be put off until after the election campaign is over. That is what is fair to the nominee and essential to the process.” (Emphasis added.) There was no union pushback.

In case there was any doubt about the Democrats obeisance to the “Biden Rule,” Democratic Senator Chuck Schumer reaffirmed it in July, 2007, insisting 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.” (Emphasis added.) Again, the unions were silent.

But now, after 30 years of massive politicization of SCOTUS, courtesy of Democrats with NEA’s blessing, the “Biden Rule” has been invoked by Republican Senate leader Mitch McConnell in the wake of Merrick Garland’s nomination to the Court by President Obama, and two teacher union leaders are demanding that we need to depoliticize the process! They were perfectly comfy with the rule, of course, when it worked for them. But now that the other side is invoking it, they want to kill it. (File this in the already bloated “Teacher Union Hypocrisy” folder.)

And why are the unions so interested in getting Obama’s allegedly moderate pick, Merrick Garland, on the Court? Because, as Bill McMorris writes, he has a history of showing deference to federal labor regulators in reviewing unfair labor practice charges against employers. “An analysis conducted by OnLabor found that Garland ruled in favor of the National Labor Relations Board (NLRB), a top federal labor arbiter, in 18 of 22 appeals that appeared before his court. Garland granted the agency leeway in interpreting its regulatory approach and interpretation of its mission.”

And of course a labor-friendly judge is just what the doctor ordered for NEA and AFT. In all likelihood, he’d become the fifth “no” vote in the Friedrichs case, thus leaving the Abood decision in place, forcing teachers and other public employees in half the country to continue to pay dues to a union as a condition of employment.

As is quite apparent, the teacher union leaders really don’t give a flip about the Constitution. What they do care about is preserving their inordinate power and their prodigious gravy train. Thankfully, the Republicans are holding tight and have turned a deaf ear to this latest occurrence of union deceitfulness.

Larry Sand, a former classroom teacher, is the president of the non-profit California Teachers Empowerment Network – a non-partisan, non-political group dedicated to providing teachers and the general public with reliable and balanced information about professional affiliations and positions on educational issues. The views presented here are strictly his own.