Ed Whelan reminds us that Senate Republicans, in refusing to hold hearings on Merrick Garland's nomination to the Supreme Court, were only following the Democrats' advice (emphasis added):
I see that some on the Left are now trying to recast their huge political loss on the Scalia vacancy as a claim that Republicans “stole” the Scalia seat. Two observations:
1. The Scalia vacancy never belonged to anyone, so it makes no sense to say that it was stolen. Or is the Left going to go beyond its “obviously fatuous” claim that the Senate had a constitutional duty to hold an up-or-down vote on the Garland nomination and now insist that the Senate had a constitutional duty to confirm Garland?
2. Let’s assume that the political situation had been reversed: that is, that a liberal justice died in an election year while a Republican was president and Democrats controlled the Senate. It’s a very safe bet that Democrats would have taken exactly the course that Senate Republicans did.
Indeed, then-Judiciary Committee chairman Joe Biden threatened exactly that a full 24 years ago, during the 1992 election year. And in late July 2007—more than 15 months in advance of the 2008 presidential election—Democratic senator Chuck Schumer [said] that the Senate “should not confirm another U.S. Supreme Court nominee under President Bush ‘except in extraordinary circumstances.’” . . .
So those who imagine that the battle over the Scalia seat involved some dramatic escalation of the confirmation wars are overlooking that Senate Democrats had already baked that escalation into the process. What made the Scalia vacancy battle different from earlier battles were two simple facts: (1) this was the first time since 1991 that a president was making a nomination to a Senate controlled by the opposite party, and (2) the vacancy arose in an election year.
The battle over the Scalia seat is likely far from over, but after the election last week, Democrats are losing the battle. But claims that the Republicans were acting in an unprecedented fashion in the past few months are overblown.
Today, President Obama nominated D.C. Circuit Judge Merrick Garland to the Supreme Court vacancy left by the untimely death of Justice Antonin Scalia, claiming that the Senate had a "constitutional duty" to hold hearings and vote on Judge Garland's nomination. This is consistent with statements by Senate Democrats, many of which contradict their previous statements about nominees submitted to the Senate by Republican Presidents.
The Washington Post's analysis of that claim concluded that it contained significant factual error (3 out of 4 Pinnochios) (emphasis added):
As you can see, there is no recent parallel to the current situation: a president filling a sudden vacancy on the court in an election year when the Senate is controlled by the opposition party, particularly when the vacancy occurred with nearly a year left in the presidential term.
But it is also clear that politics has always played a role — and the Senate has set the rules to act as it wants. Nearly 200 years ago, the Senate made it clear that it was not required to act on a Supreme Court nomination. In periods of divided government, especially with elections looming, the Senate has chosen not to act — or to create circumstances under which the president’s nominee either withdrew or was not considered. Indeed, the patterns don’t suggest the Senate used procedures out of constitutional duty, out of deference for what the Constitution says or what previous Senates have done. Instead they used procedures based on the political circumstances of each confirmation.
It’s matter of opinion whether a refusal to consider a nominee is a dereliction of constitutional duty or walking away from a constitutional responsibility. But the Senate majority can in effect do what it wants – unless it becomes politically uncomfortable. Democrats who suggest otherwise are simply telling supporters a politically convenient fairy tale.
In reacting to Judge Garland's nomination, RNLA leaders agree that the Senate is in control of its own process and of the decision whether to consider a nominee:
RNLA Chair Randy Evans: “The American people should have the opportunity to weigh in on such an
important and pivotal nomination. . . . Democracy works best when government officials, including the President, let the people be
heard.”
RNLA Judicial Affairs Vice President Stefan Passantino: “While our president had the constitutional right to
nominate Merrick Garland, so too does the Senate have the right to withhold consent in a presidential election
year.”
The RNLA thanks Senate Republicans for their continued devotion to principled defense of the Constitution by not considering a nomination to the Supreme Court that could negatively transform the Court.
On March 4, RNLA is hosting a nationwide conference call on Justice Scalia's legacy with Ed Whelan, President of the Ethics and Public Policy Center and former law clerk to Justice Scalia. Ed will discuss the importance of Justice Scalia's jurisprudence and the importance of waiting for the next President to appoint his successor. He will also take questions.
Shortly after Justice Scalia's sudden passing, Ed wrote:
It’s been more than 80 years since a Supreme Court justice was confirmed in an election year to a vacancy that arose that year, and there has never been an election-year confirmation that would so dramatically alter the ideological composition of the Court.
. . . Senate Republicans would be grossly irresponsible to allow President Obama, in the last months of his presidency, to cement a liberal majority that will wreak havoc on the Constitution. Let the people decide in November who will select the next justice.
Through a series of tweets, Ed has reiterated the importance of Senate Republicans holding firm on not holding a hearing for any person President Obama nominates to fill Justice Scalia's seat on the Court.
Ed is also an expert on the judicial confirmation process and the Senate's role in that process:
The only real question is over how the Senate can and should exercise its advice-and-consent role. And the clear answer to that twofold question is that the Senate has the plenary power to exercise its advice-and-consent role however it wishes (as Democrats have long recognized . . . ) and that the only constraints are political, not constitutional, in nature.
The RNLA invites all current members to join us on Friday, March 4, at 12:30 PM EST to hear Ed Whelan's thoughts on Justice Scalia's legacy and the importance of the current vacancy on the Supreme Court.
In the days since Justice Scalia's untimely passing, pundits and scholars have been using the history of Supreme Court nominations and confirmations to make their chosen political point - either that the Senate should or should not confirm a Supreme Court nominee in an Election Year.
These are the simple facts regarding Supreme Court nominations and confirmations in Election Years since the Civil War:
- The last justice confirmed during an Election Year to a vacancy that arose in that year was Justice Cardozo in 1932. When President Hoover nominated Justice Cardozo, he nominated a person of the opposite party.
- The last justice confirmed during an Election Year to a vacancy that arose in that year when the Presidency and the Senate were held by different parties was Justice Fuller in 1888.
- The last justice confirmed during an Election Year to a vacancy that arose in the year prior was Justice Kennedy in 1988. Justice Kennedy was the third nominee to the vacancy. If not for the delay caused by the unprecedented obstruction of President Reagan's first nominee, Judge Robert Bork, the vacancy almost surely would have been filled in 1987.
Prior to 1916, the confirmation process was vastly different from today's extended and highly publicized process. Confirmation hearings were not regularly held, and nominees were frequently confirmed by a voice vote.
Reviewing the actual historical facts in modern judicial confirmations presents a clear picture of Supreme Court nominees not being confirmed in an Election Year to vacancies that occurred in that year.
The
practice of the Senate not confirming Supreme Court nominees in an Election
Year has not been made up by Republicans in response to Justice Scalia's
untimely passing. It is a rule first outlined by the Democrat poised to
replace Sen. Harry Reid as Minority Leader.
In July
2007, fully 18 months before the end of President George W. Bush's second
term of office, Sen. Chuck Schumer advocated blocking any further Bush
nominees to the Supreme Court:
[F]or the
rest of this President’s term . . . : We should reverse the presumption
of confirmation. The Supreme Court is dangerously out of
balance. . . . Given the track record of this President and the
experience of obfuscation at the hearings, with respect to the Supreme Court,
at least: I will recommend to my colleagues that we should not
confirm a Supreme Court nominee EXCEPT in extraordinary circumstances.
As we noted
in Part 1 of this series, in modern times,
Supreme Court vacancies that occur in election years are traditionally not
filled until after the election, giving the people an opportunity to speak on
the issue. The Senate holds the constitutional power to advise and
consent on the president's nominees, but per Sen. Schumer's own rule, the
Senate should not confirm a potential Supreme Court justice nominated by a lame-duck president.
The RNLA mourns the sudden passing of Justice Antonin Scalia, along with the rest of the country. His passing leaves a vacancy on the Supreme Court, and though Justice Scalia can never truly be replaced, a justice to succeed him will be nominated by the President and confirmed by the Senate. The justice to succeed Justice Scalia should not be nominated by this President and confirmed by this Senate, however.
In modern American history, a Supreme Court vacancy that arises in an election year is not filled until after the election. As Shannen Coffin explains:
[T]here simply is no precedent in modern times for filling a vacancy that arises in an election year. You have to go back to Benjamin Cardozo in 1932 to find a similar circumstance. Democrats have pointed to the appointment of Anthony M. Kennedy in 1988, but that vacancy arose in June 1987, the summer before the election, and only remained open because Democrats had already blocked one of the most qualified nominees in our history from the Court (Robert Bork).
Ed Whelan notes the importance of this particular vacancy, given Justice Scalia's intellectual force and analytical consistency:
[T]here has never been an election-year confirmation that would so dramatically alter the ideological composition of the Court. . . . Senate Republicans would be grossly irresponsible to allow President Obama, in the last months of his presidency, to cement a liberal majority that will wreak havoc on the Constitution. Let the people decide in November who will select the next justice.
It is only proper for the American people to have an opportunity to exert a measure of control on an institution that is normally not open to the influence of the public will. The people are not able to select the nominee, but they should be able to select the person who selects the nominee.
