At Newsweek: Senate Republicans have Precedent on Their Side

Sep 23, 2020 | judicial confirmations, op-ed

Dr. John Lott has a new piece up at Newsweek.

While Senate Republicans promise to fill the late Justice Ruth Bader Ginsburg’s seat on the Supreme Court and Democrats threaten to pack the Court, leading Democrats claim precedent is on their side. “Mitch McConnell set the precedent,” Massachusetts senator Ed Markey tweeted. “No Supreme Court vacancies filled in an election year. If he violates it, when Democrats control the Senate in the next Congress, we must abolish the filibuster and expand the Supreme Court.”

But the historical record reveals that, contrary to Markey’s claim, the Senate has never had a rule against filling vacancies in an election year. Lots of presidents have nominated Supreme Court Justices in presidential election years. While some have been confirmed, others haven’t, including some, like Merrick Garland, who never received a vote. McConnell himself never set any precedent on the issue. His 2016 actions in fact followed a long Senate tradition.

One hundred and forty-four people have been nominated to the Supreme Court. Twenty-three were nominated during a presidential election year. Another eight were nominated in the “lame-duck,” post-election transition period that occurs during the last few months of a president’s stay in office.

Making such a nomination in the waning days of a president’s term has hardly guaranteed confirmation. Of the 37 failed Supreme Court nominations, 14 occurred during a presidential election year or in the lame-duck period. Some nominees were voted down or filibustered by the Senate. Seven other late-term Supreme Court nominations, in addition to Garland’s, were killed because the Senate refused to vote. Of the successful late-term nominations, 11 occurred during the election year of the president’s first term.

Examples of failed nominations include two by Democrat Lyndon Johnson in 1968—Abe Fortas and Homer Thornberry. With concerns that Nixon could win the presidential election that year, Earl Warren announced his retirement in June to give Johnson a chance to replace him. The battle over Johnson’s nominations came to a head in October, just a month before the presidential election. Fortas finally withdrew his nomination because it was clear that there weren’t enough votes to overcome the bipartisan filibuster. Democrats held a 64-36 majority in the Senate.

Refusing to hold a vote is effectively the same as deciding not to support a nominee. Indeed, there have been eight Supreme Court nominations killed because the Senate refused to vote. When Democrats controlled the Senate in 1992, they warned George H.W. Bush that they wouldn’t confirm a nominee for the Supreme Court—the Biden Rule. When Republicans controlled the Senate in 2016, they told Obama that they weren’t going to confirm his Supreme Court nominee.

But there is also a long list of successful election-year nominations. In 1940, Franklin Roosevelt nominated Frank Murphy. Herbert Hoover nominated Benjamin Cardozo in March 1932. Before that, there were Louis Brandeis and John Clarke by Woodrow Wilson in 1916. Clarke wasn’t nominated until mid-July. The practice goes back to George Washington’s nominations of Samuel Chase and Oliver Ellsworth in 1796, the president’s final year in office.

Across the various historical outcomes, much depended on whether the same party controlled the presidency and the Senate. In all those cases of successful election-year nominations, the presidency and Senate were controlled by the same party, as they are today. Another important factor is whether the president is running for reelection. Garland’s nomination took place at the end of Obama’s eight-year administration. There had to be a new president at that point. Trump’s case is different—the president is in his fourth year and might win another term.

Democrats used to recognize that holding the presidency and Senate, not the lateness of a president’s term, was the key to Supreme Court confirmations. Many liberals were angry with Ginsburg when she declined to retire in 2014—the last time Democrats controlled both the presidency and the Senate. The Justice was already 81 years old. Ginsburg could have retired when her allies would have been able to assure a like-minded successor. But that didn’t happen, and as Ginsburg herself told the New York Times in 2016, “There’s nothing in the Constitution that says the president stops being the president in his last year.”

* Lott is the president of the Crime Prevention Research Centerand the author of “Dumbing Down the Courts: How Politics Keeps the Smartest Judges Off the Bench.”

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