All the Republican presidential candidates, along with the GOP leadership in the Senate, have declared that President Obama should not name, and the Senate must not approve, a replacement for Associate Justice Antonin Scalia, who passed away this past weekend.
There is nothing even close to a precedent for this. While a few justices have been rejected over the years, no president in history has been denied his constitutional privilege and responsibility of filling Supreme Court vacancies.
In fact, there have been many supreme court justices named in the final year of a president’s term, whether he was about to stand for re-election or not. In addition, history is filled with examples of nominations being confirmed during times of divided government.
If the GOP plans to block the naming of a replacement for Scalia, what is their reasoning for doing so? The people elected President Obama and then re-elected him. The possibility that the President might be naming justices of the Supreme Court was hardly ignored during the campaign. With so many of the Justices in their twilight years, both campaigns relentlessly reminded voters of the stakes should there be a vacancy in the SCOTUS.
Knowing this, the voters chose Obama. It is his duty to name Scalia’s replacement and the Senate’s responsible to give advice and consent.
Perhaps even more important than the constitutional issue is the fact that the Supreme Court cannot fully function with a partial bench. How many cases will be split 4-4 without a ninth member to break the tie? With such uncertainty, many judicial cans will be kicked down the road and the lower courts will be in disarray for lack of direction from the SCOTUS. Would the GOP intentionally inflict legal chaos on the country just to humiliate Obama?
Back to the issue of precedent. Here are seven SCOTUS justices, just in the past 100 years, that were appointed by a president within a year of a presidential election. Every single one was approved the Senate, more times than not, ruled by the opposing party.
Anthony Kennedy, 1987 – Kennedy was nominated by lame duck president Ronald Reagan on November 30, 1987, about 11 months before the presidential election of 1988. He was confirmed by the Senate in February of 1988 by a vote of 97-0. (Mitch McConnell, currently leading the call to prevent Obama from naming a Scalia replacement, voted “yes” on Kennedy’s confirmation in 1988.)
John Paul Stevens, 1975 – Gerald Ford nominated Stevens on November 28, 1975, less than a year before the presidential election that would oust him in favor of Jimmy Carter.
Lewis Powel and William Rehnquist, 1971 – These don’t count since they were just over the one-year mark, but Richard Nixon nominated both Powell and Rehnquist on October 22, 1971, about ten days and one year before the presidential election of 1972.
William Brennan, 1956 – Brennan was named by Eisenhower in a recess appointment just a few months before his re-election in 1956. This was an overtly political choice. Brennan was a Roman Catholic and Eisenhower was trying to shore up the Catholic vote, which was largely working class and immigrant at that time. In addition, Brennan was a Democrat and Eisenhower was trying to appeal, successfully it turned out, to moderates and swing voters that would be impressed with his bipartisanship. Nevertheless, he was eventually confirmed by the Senate with only one Senator voting “no,” the infamous Joseph McCarthy, whom Brennan had spoken out against.
Frank Murphy, 1940 – Franklin Roosevelt nominated Murphy to the high court in January, 1940, less than ten months before election day and with his final campaign in full swing. This was also an intensely political choice, as Murphy had openly supported Roosevelt’s plan to pack the SCOTUS with political allies to protect his New Deal legislation from being overturned. He was confirmed by the Senate a mere twelve days after his nomination was submitted.
Benjamin Cardozo, 1932 – Herbert Hoover named Cardozo in a desperate attempt to head off Roosevelt’s eventual trouncing of him in the presidential election of that same year. Of the appointment, The New York Times wrote, “Seldom, if ever, in the history of the Court has an appointment been so universally commended,” and the Senate unanimously confirmed him just days after his appointment. Though Hoover failed to rescue the country from the Great Depression, his appointment of the great Cardozo remains one of the brightest spots in his presidential legacy.
John Clarke, 1916 – Woodrow Wilson named Clarke to the court the summer before what would be his final election in 1916. Clarke was a noted liberal and Wilson made no secret of the fact that he first verified that Clarke would uphold the anti-trust legislation that had been used to break up industrial monopolies and pave the way for the creation of the middle class. Despite this, he was confirmed unanimously by the Senate just ten after he was nominated.
Louis Brandeis, 1916 – Prior to Clarke, Wilson named Brandeis to the high court in January of his election year. Brandeis was an unabashed progressive, political activist, and had been even been dubbed, “The People’s Lawyer.” His nomination led the Republican-controlled Judiciary Committee to do something it had never done before: they held a public hearing to debate his nomination and hear testimony for and against his fitness to serve. Though confirmation hearings are a required part of the judicial appointment process now, this was a contentious historical moment and the Senate took a then-unprecedented four months to hold a confirmation vote for Brandeis. He was confirmed by a supermajority vote of 47-22 with most Republicans voting yes.
There you have it. In just the past 100 years, seven justices have been named by presidents in a presidential election year (whether they stood for election or not). There is simply no precedent for denying a president his constitutional right and obligation to fill vacancies on the Supreme Court.
If the Republicans engage in a protracted delay maneuver, this will actually set a new and potentially very dangerous precedent. If Congress can decide to leave the SCOTUS short-staffed for a year, what’s to stop them there? Maybe they should wait another two years more in order to hope for an even more like-minded Senate. Why stop there? Maybe a future Senate could delay until the next presidential election, no matter how long the wait. If the president is of the opposing party, there’s nothing to gain by letting her/him get an appointment, when there’s bound to be a party ally in the White House eventually!
Hyperbole perhaps, but these are unpredictable times we are living in. Long gone are the days where a president can simply name whomever he wants and expect confirmation. But never before this year has it been suggested that the Senate leave a prolonged opening in the highest court in the land simply to stall for an election to occur.
It is no longer a question of allowing President Obama to pick whomever he wants. It’s a question of allowing him to pick anyone at all.