Republican leaders have also resorted to history as a basis to withhold a confirmation hearing for any person that President Obama nominates. In a letter by Senate Judiciary Committee Republicans to Senator McConnell, they justified their refusal because "[n]ot since 1932 has the Senate confirmed in a presidential election year a Supreme Court nominee to a vacancy arising in that year. And it is necessary to go even further back — to 1888 — in order to find an election year nominee who was nominated and confirmed under divided government, as we have now."
Such historical cherry-picking is fraught with the same weakness as that used by liberals who have argued that since 1900 six justices have been confirmed during presidential election years. Justice Scalia explained the fallacy: "The historical practice of the political branches is, of course, irrelevant when the Constitution is clear."
Republican leaders have further tried to cloak their decision under the statements and actions of Democratic leaders during prior nomination disputes. Senator Charles Schumer, for example, stated in 2007 that "we cannot afford to see Justice Stevens replaced by another Roberts, or Justice Ginsburg by another Alito" and thus the Senate should not confirm a nominee "except in exceptional circumstances."
Justice Scalia would have scoffed at such a justification because these are politicians after all. He recognized as much in explaining that what members of Congress think is of limited relevance: "I have often criticized the Court's use of legislative history because it lends itself to a kind of ventriloquism. The Congressional Record or committee reports are used to make words appear to come from Congress's mouth which were spoken or written by others (individual Members of Congress, congressional aides, or even enterprising lobbyists)."