The state of national politics haven’t been thrown into such turmoil in decades with the sudden passing of conservative Supreme Court Justice Antonin Scalia. Republican presidential candidates have vowed that it will be one of them who appoints Scalia’s replacement, and Senate Majority Leader Mitch McConnell has also stated that the next appointee should be left up to the next President. Senate Minority Leader Harry Reid and President Obama are rejecting that notion and vowing to push through a new justice.
Everyone seems to have suddenly become a Constitutional scholar who is exactly right in their view, but who is really correct?
Well, quite simply, both sides are. And many on both sides are being quite hypocritical and dishonest about how this process played out in our past history.
Article Two of the United States Constitution states,
“he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law…”
So are Democrats correct in saying that President Obama has every Constitutional right to appoint a new Supreme Court nominee? Absolutely. But what often gets lost in translation is that ‘nominate’ does not equal ‘confirm.’ The Constitution clearly gives power to the President to nominate, but leaves it up to the Senate to approve and confirm said nominee. So are Republicans correct in saying that they can legally and Constitutionally block an Obama nominee? Absolutely.
The historical fact of the matter is that the Senate has not confirmed a lame-duck Supreme Court nominee in an election year in over eight decades. This precedent started with John Quincy Adams and last occurred to Lyndon B. Johnson. It is also not crazy or unheard of to have lengthy vacancies on the highest court when the Senate refused to play nice with controversial presidents and nominees.
President John Tyler had a particularly difficult time filling vacancies. Smith Thompson died in office December 18, 1843. His replacement, Samuel Nelson, was in office starting February 14, 1845. That’s a vacancy of 424 days. Henry Baldwin died in office April 21, 1844. His replacement, Robert Cooper, was in office starting August 4, 1846. This vacancy lasted 835 days because Tyler could not get the Senate to work with him. During Tyler’s presidency, the Senate rejected nine separate Supreme Court nominations! Most recently, Abe Fortas resigned May 14, 1969. His replacement, Harry Blackmun, was in office starting June 9, 1970, making the gap just longer than a year.
So for everyone making a big fuss saying it’s a Constitutional disgrace to go 300 days without a Supreme Court Justice, we’ve survived through worse. In addition, of the 160 nominations to the Supreme Court from 1789 through August 2010, 36 nominations were not confirmed by the Senate. For those keeping count, that comes out to 22.5%.
Another option though for President Obama to undermine the Republican Senate would be to make a recess appointment when the Senate is not in session. Currently, the Senate is on a short recess and there is a two-week recess scheduled in April. There have been twelve recess appointments to the high court in America’s past. However, a recess appointment is not permanent and would only serve as a temporary solution lasting until the end of the Senate’s next session. Senate Republicans can also legally and constitutionally block this from happening by holding pro forma sessions. The ball is in their court right now.
However, bad news for Democrats, in August 1960, Senate Democrats passed a resolution in 1960, S.RES. 334, which stated,
“Expressing the sense of the Senate that the president should not make recess appointments to the Supreme Court, except to prevent or end a breakdown in the administration of the Court’s business.”
This was an attempt by the minority Senate Democrats during President Eisenhower’s administration to prevent the President from appointing recess appointments. However, the resolution ultimately failed, and shows the hypocrisy of today’s Senate Democrats who are calling for a present recess appointment.
Another knock against Democrats today are their very own words during President Bush’s administration. Democratic Senate leader Chuck Shumer went on record in July 2007, nineteen months before a new President would be inaugurated, stating that no George W. Bush nominee should be approved by the Democrat-controlled Senate.
“We should not confirm any Bush nominee to the Supreme Court…”
However, Sunday, on ABC’s “This Week,” Senator Schumer stated that Senate Majority Leader Mitch McConnell was an “obstructionist” for vowing to block any Obama nominee, further stating,
“When you go right off the bat and say, ‘I don’t care who he nominates, I am going to oppose him,’ that’s not going to fly.”
That’s quite a change of tune from literally stating the exact same thing a couple of years back.
Also another knock against Democrats is the fact that President Obama is the first U.S. President in history to ever vote to filibuster a Supreme Court nominee. In 2006, Senator Barack Obama joined 24 other Democrats in an attempt to filibuster the nomination of current Justice Samuel Alito.
“be supporting the filibuster because I think Judge Alito, in fact, is somebody who is contrary to core American values, not just liberal values, you know. When you look at his decisions in particular during times of war, we need a court that is independent and is going to provide some check on the executive branch, and he has not shown himself willing to do that repeatedly.”
Of course, the filibuster ultimately failed, but it should be noted that he himself made the case for not allowing President Bush to nominate a justice with three years left in his second term.
There have also been a lot of half-truths thrown around about how President Reagan successfully did the same thing in 1988 with current Justice Anthony Kennedy, when Kennedy was confirmed on March 20, 1988, in the last year of Reagan’s Presidency, and in an election year. Democrats are using this as an argument of precedent that President Obama should be allowed to do the same thing. However, there are a few problems with this argument, as pointed out by Dr. Marc Newman, who is the former Director of Speech and Debate at the University of California at Irvine, and recently retired from teaching in the doctoral program in the School of Communication and the Arts at Regent University.
1) Justice Powell, who Kennedy eventually replaced, retired in June of 1987 (which, by the way, was not an election year — that would be ’88, with a president taking office in January of ’89).
2) Reagan first nominated judge Robert Bork on July 1, 1987. The senate rejected Bork in a set of hearings so vile that it turned Bork’s name into a verb for a long time afterward. It took until October 23, 1987.
2) Reagan then nominated Judge Douglas Ginsburg, on October 29th, 1987 and, nine days later, Ginsburg withdrew his name from consideration.
3) Only after two failed confirmations, did Reagan take a third swipe and nominate Kennedy on November 11, 1987 and it took until March 20, 1988 to confirm him (finally placing confirmation, but not nomination, in an election year).
Even Kennedy’s confirmation in an election year was a massive outlier. It hadn’t happened since before WWII, and, as you can see above, Kennedy’s confirmation came on the heels of two rejections. The process to replace the retiring Powell (whose retirement, it should be noted, was expected, whereas Scalia’s death was a surprise) had begun ten months earlier.
So, if we are going to use this as “precedent,” the Republican-led Senate would be justified in taking the same 10 months a Democrat-led senate took to confirm a Supreme Court justice from the time of that nomination. That would take us well past the the November elections. No one in their right mind, of either party, would expect to get that kind of concession, particularly in the midst of an election year when the nation is this thoroughly divided.
Again, it should be noted that nominations to replace the retiring Justice Powell did not take place in an election year. The nominations began a year prior, with a confirmation happening the next year, which did happen to be an election year. It still does not help the current argument being bandied around that there is a historical precedent for confirmation in an election year. There is a big difference between ‘nomination’ and ‘confirmation.’
And let us not forget Democratic Senator Patrick Leahy, who was the then-ranking member of the Senate Judiciary Committee from 2001 to 2005, (the committee that decides to allow nominees to even be voted on or not). Senator Leahy led a blockade with Senator Harry Reid (beginning in President Bush’s first term in office, not at the end of his second term) that ultimately blocked dozens of President Bush’s judicial nominees from ever receiving a vote, even though they would have been confirmed had a vote been allowed. Leahy and Reid argued then, with no objection from 2004 Senate candidate Barack Obama, that the Senate was not constitutionally obliged to take up any judicial nomination that it did not want to be considered. The shoe is on the other foot today, and the same people who blocked appointees back then, are now crying that it’s unconstitutional for the opposing party to do so now.
And lastly, let’s not forget that time in November 2013, when Senator Harry Reid rewrote Senate rules and deployed the “nuclear option,” a procedure that allowed President Obama’s judicial nominees to bypass a 60-vote filibuster threshold, where now only a 51-vote simple majority would be needed to pass through the President’s judicial appointments. That decision paid off big time for Democrats in 2013, when 59 vacancies on the Circuit Court Level (where most major political decisions are decided) all the way down to seven vacancies.
Republicans were understandably outraged at the fact that their legal and constitutional authority on filibustering a judicial nominee and requiring a 60-vote majority were stripped away from them.
So back to present day, can President Obama nominate a new Supreme Court Justice? Yes.
Can the Senate block said nominee(s)? Yes.
Is there ample historical precedent for doing just that? Undoubtedly yes.
If I were President Obama, would I still try to nominate a new justice? Absolutely yes. But if I were the Senate Republicans, I would argue ‘Hey, we’re just going to do what you guys repeatedly did to us on the other foot,’ which is to block nominees, for which there is enormous legal and previous procedural precedent to do so. Senator Harry Reid, Senator Chuck Schumer, and President Obama can cry foul all they want, but if the shoe were on the other foot, and in fact when it was on the other foot, they were doing the exact same things they are now crying as unconstitutional.
What is certain, is that this year’s Presidential race just became that more important, and we’re set for a showdown in the Senate unlike anything the American population has seen in quite some time.