History Is on the Side of Republicans Filling a Supreme Court Vacancy in 2020

Choosing not to fill a vacancy would be a historically unprecedented act of unilateral disarmament.

posted on August 7, 2020 by Dan McLaughlin at National Review

If a Supreme Court vacancy opens up between now and the end of the year, Republicans should fill it. Given the vital importance of the Court to rank-and-file Republican voters and grassroots activists, particularly in the five-decade-long quest to overturn Roe v. Wade, it would be political suicide for Republicans to refrain from filling a vacancy unless some law or important traditional norm was against them. There is no such law and no such norm; those are all on their side. Choosing not to fill a vacancy would be a historically unprecedented act of unilateral disarmament. It has never happened once in all of American history. There is no chance that the Democrats, in the same position, would ever reciprocate, as their own history illustrates.

For now, all this remains hypothetical. Neither Ruth Bader Ginsburg nor any of her colleagues intend to go anywhere. But with the 87-year-old Ginsburg fighting a recurrence of cancer and repeatedly in and out of hospitals, we are starting to see the Washington press corps and senators openly discussing what would happen if she dies or is unable to continue serving on the Court. Democrats are issuing threats, and some Republicans are already balking.

They shouldn’t.

History supports Republicans filling the seat. Doing so would not be in any way inconsistent with Senate Republicans’ holding open the seat vacated by Justice Antonin Scalia in 2016. The reason is simple, and was explained by Mitch McConnell at the time. Historically, throughout American history, when their party controls the Senate, presidents get to fill Supreme Court vacancies at any time — even in a presidential election year, even in a lame-duck session after the election, even after defeat. Historically, when the opposite party controls the Senate, the Senate gets to block Supreme Court nominees sent up in a presidential election year, and hold the seat open for the winner. Both of those precedents are settled by experience as old as the republic. Republicans should not create a brand-new precedent to deviate from them.

Power, Norms, and Election-Year Nominations

There are two types of rules in Washington: laws that allocate power, and norms that reflect how power has traditionally, historically been used. Laws that allocate power are paramount, and particularly dangerous to violate, but there is no such law at issue here. A president can always make a nomination for a Supreme Court vacancy, no matter how late in his term or how many times he has been turned down; the only thing in his way is the Senate.

Twenty-nine times in American history there has been an open Supreme Court vacancy in a presidential election year, or in a lame-duck session before the next presidential inauguration. (This counts vacancies created by new seats on the Court, but not vacancies for which there was a nomination already pending when the year began, such as happened in 1835–36 and 1987–88.) The president made a nomination in all twenty-nine cases. George Washington did it three times. John Adams did it. Thomas Jefferson did it. Abraham Lincoln did it. Ulysses S. Grant did it. Franklin D. Roosevelt did it. Dwight Eisenhower did it. Barack Obama, of course, did it. Twenty-two of the 44 men to hold the office faced this situation, and all twenty-two made the decision to send up a nomination, whether or not they had the votes in the Senate.

During the 1844 election, for example, there were two open seats on the Court. John Tyler made nine separate nominations of five different candidates, in one case sending up the same nominee three times. He sent up a pair of nominees in December, after the election. When those failed, he sent up another pair in February (presidential terms then ended in March). He had that power. Presidents have made Supreme Court nominations as late as literally the last day of their term. In Tyler’s case, the Whig-controlled Senate had, and used, its power to block multiple nominations by a man they had previously expelled from their party.

At the same time, in terms of raw power, a majority of senators has the power to seat any nominee they want, and block any nominee they want. Historically, that power of the majority was limited by the filibuster, but a majority can change that rule, and has. Norms long limited the filibuster’s use in judicial nominations in the first place, and violation of those norms led to its abolition. No Supreme Court nominee was filibustered by a minority of Senators until 1968. Senate Democrats attempted filibusters of William Rehnquist twice, and launched the first formal filibuster of a new appointment to the Court on partisan lines against Samuel Alito in 2005. Joe Biden participated prominently in the Rehnquist and Alito filibusters. Senate Democrats, led by Harry Reid and Chuck Schumer and joined by Biden, were the first to filibuster federal appellate nominees in 2003. After Republicans adopted the same tactic years later, Senate Democrats eliminated the filibuster for appellate nominees in 2013. Republicans extended that elimination to Supreme Court nominees in 2017.

So, today, Donald Trump has the raw power to make a Supreme Court nomination all the way to the end of his term. Senate Republicans have the raw power to confirm one at least until a new Senate is seated on January 3, and — so long as there are at least 50 Republican senators on that date — until Trump leaves office. Whether they should use this power, however, is a matter of norms, and of politics.

Norms are crucially important. If parties cannot trust that the other side will abide by established norms of conduct, politics devolves rapidly into a blood sport that quickly loses the capacity to resolve disagreements peaceably within the system. Those norms are derived from tradition and history. So let’s look at the history.

The Senate’s Precedents

In 2016, Barack Obama used his raw power to nominate Merrick Garland to replace Antonin Scalia in March of the last year of Obama’s term, with the Trump–Clinton election underway. The Republican majority in the Senate used its raw power to refuse to seat that nominee. Having reached that decision, the Republican majority did not even hold a hearing for an outcome that was predetermined. In looking back at that exercise of Senate power in 2017, I concluded that it was supported by historical precedent:

In short: There have been ten vacancies resulting in a presidential election-year or post-election nomination when the president and Senate were from opposite parties. In six of the ten cases, a nomination was made before Election Day. Only one of those, Chief Justice Melville Fuller’s nomination by Grover Cleveland in 1888, was confirmed before the election. Four nominations were made in lame-duck sessions after the election; three of those were left open for the winner of the election. Other than the unusual Fuller nomination (made when the Court was facing a crisis of backlogs in its docket), three of the other nine were filled after Election Day in ways that rewarded the winner of the presidential contest:

• In February 1845, the Whigs (who had lost the Senate and the White House in the 1844 election) compromised in the lame-duck session to seat one of Tyler’s nominees, leaving the other for incoming Democrat James K. Polk.
• In December 1880 and January 1881, the Democrats (who had likewise lost the Senate and failed to regain the White House in 1880) confirmed one of Rutherford B. Hayes’s nominees and defeated the other, who was then successfully renominated by Hayes’s Republican successor, James A. Garfield.
• In 1956, Dwight Eisenhower’s pre-election recess appointment of a Democrat, William Brennan, in mid-October was confirmed as a lifetime appointment in Ike’s second term after he was reelected and the Democrats continued to hold the Senate.

The norm in these cases strongly favored holding the seat open for the conflict between the two branches to be resolved by the presidential election. That is what Republicans did in 2016. The voters had created divided government, and the Senate was within its historical rights to insist on an intervening election to decide the power struggle. Had there been no conflict between the branches to submit to the voters for resolution, there would have been no reason for delay.

When Anthony Kennedy retired in 2018, I looked again at the historical practice, and concluded that the norm in midterm-election years favors confirming a Supreme Court nominee regardless of which party holds the Senate. This, too, has become the norm for a reason: While the Senate can always reject a particularly objectionable nominee, it is hard to justify forcing the Court to work short-handed for years on end.

So what does history say about this situation, where a president is in his last year in office, his party controls the Senate, and the branches are not in conflict? Once again, historical practice and tradition provides a clear and definitive answer: In the absence of divided government, election-year nominees get confirmed.

Nineteen times between 1796 and 1968, presidents have sought to fill a Supreme Court vacancy in a presidential-election year while their party controlled the Senate. Ten of those nominations came before the election; nine of the ten were successful, the only failure being the bipartisan filibuster of the ethically challenged Abe Fortas as chief justice in 1968. Justices to enter the Court under these circumstances included such legal luminaries as Louis Brandeis and Benjamin Cardozo. George Washington made two nominations in 1796, one of them a chief justice replacing a failed nominee the prior year. It was his last year in office, and the Adams–Jefferson race to replace him was bitter and divisive. Woodrow Wilson made two nominations in 1916, one of them to replace Charles Evans Hughes, who had resigned from the Court to run for president against Wilson. Wilson was in a tight reelection campaign that was not decided until California finished counting votes a week after Election Day. Three of the presidents who got election-year nominees confirmed (Benjamin Harrison in 1892, William Howard Taft in 1912, and Herbert Hoover in 1932) were on their way to losing reelection, in Taft’s and Hoover’s cases by overwhelming margins. But they still had the Senate, so they got their nominees through.

Nine times, presidents have made nominations after the election in a lame-duck session. These include some storied nominations, such as John Adams picking Chief Justice John Marshall in 1801 and Abraham Lincoln selecting Chief Justice Salmon P. Chase in 1864. Of the nine, the only one that did not succeed was Washington’s 1793 nomination of William Paterson, which was withdrawn for technical reasons and resubmitted and confirmed the first day of the next Congress (Paterson had helped draft the Judiciary Act of 1789 creating the Court, and the Constitution thus required his term as a senator to end before he could be appointed to the Court). Two of Andrew Jackson’s nominees on the last day of his term were confirmed a few days later, without quibbles. In no case did the Senate reject a nominee or refuse to act on a nomination; why would they? Three of the presidents who filled lame-duck vacancies — Adams, Martin Van Buren, and Benjamin Harrison — had already lost reelection.

The Adams precedent is the most famous; back when people read basic American history in school, everybody knew about Adams and the Federalists in the Senate stocking the courts with “midnight judges.” That is part of the story of the first peaceful transfer of power after a democratic election in history. The crown jewel of the midnight judges, Chief Justice Marshall, went on to become the most influential jurist in American history, entrenching the Federalist Party’s theories of the Constitution for many years after the party ceased to exist. Marshall served into Andrew Jackson’s presidency over three decades later, and his decisions still guide the American constitutional practice of judicial review.

In addition to Marshall, two of the other lame-duck appointees would go on to lead the Court: Salmon P. Chase, Abraham Lincoln’s Treasury secretary, was appointed Chief Justice by Lincoln a month after the 1864 election, and Harlan Fiske Stone, appointed by Calvin Coolidge in January after the 1924 election, would later be elevated by Franklin Roosevelt to Chief Justice in 1941. Lincoln was the only president with a favorable Senate to have a vacancy open just before the election (in mid-October, with the death of Dred Scott author and Lincoln bête noire Roger Taney) and wait until he had won to make a nomination. He had his own strategic reasons to want his own position fortified before using the plum position of Chief Justice to rid himself of Chase, who had angled for Lincoln’s job in 1864 and was trusted by Lincoln ideologically but not politically.

A few of these late-term nominations — but only a few — were made with an eye to political concession. Hoover required two tries to fill a vacancy with a Republican in 1930. When Oliver Wendell Holmes retired in 1932, Hoover was mired in the Depression and fighting for his political life. He chose a Democrat: the liberal, Jewish New Yorker Cardozo, then the most prominent state-court judge in the country and widely seen as a worthy successor to Holmes’s legacy as a common-law judge. Benjamin Harrison, having filled one seat in July 1892 with Republican George Shiras, picked Democrat Howell Jackson for his second choice in the lame-duck session in January 1893. Jackson was not just any Democrat: like his predecessor, Lucius Q. C. Lamar, Jackson had served in the government of the Confederacy. He was also a Harrison family friend. These were, however, political choices; the other 17 vacancies were filled by men from the party holding the presidency and the Senate.

The bottom line: If a president and the Senate agree on a Supreme Court nominee, timing has never stopped them. By tradition, only when the voters have elected a president and a Senate majority from different parties has the fact of a looming presidential election mattered. When there is no dispute between the branches, there is no need to ask the voters to resolve one.