This is 2018. For those of us who can do elementary mathematics, that is a year divisible by 2 and not by 4. In American politics, that means it is a year for election of the House of Representatives and 1/3 of the Senate, but not the President.
Having said that, we face one immediate question: Can our Supreme Court nomination and confirmation processes, so racked by discord and bitterness, be repaired in a Presidential election year? History teaches us that this is extremely unlikely.
Some of our Nation's most bitter and heated confirmation fights have come in Presidential election years. The bruising confirmation fight over Roger Taney's nomination in 1836; the Senate's refusal to confirm four nominations by President Tyler in 1844; the single vote rejections of nominees Badger and Black by lameduck Presidents Fillmore and Buchanan, in the mid-19th century; and the narrow approvals of Justices Lamar and Fuller in 1888 are just some examples of these fights in the 19th century.
Overall, while only one in four Supreme Court nominations has been the subject of significant opposition, the figure rises to one out of two when such nominations are acted on in Presidential election years.
In our own century, there are two particularly poignant cases. The 1916 confirmation fight over Louis D. Brandeis, one of America's great jurists--a fight filled with mean-spirited anti-Semitic attacks on the nominee--is an example of how election year politics can pollute Senate consideration of a distinguished candidate. And the 1968 filibuster against Abe Fortas' nomination--an assault that was launched by 19 Republican Senators, before President Johnson had even named Fortas as his selection--is similarly well known by all who follow this.
Indeed, many pundits on both the left and the right questioned our committee's ability to fairly process the Bork nomination--a year before the 1988 campaign--without becoming entangled in Presidential politics. While I believe this concern was misplaced, and ultimately disproved, it illustrates how fears of such politicization can undermine confidence in the confirmation process.
Moreover, the tradition against acting on Supreme Court nominations in a Presidential year is particularly strong when the vacancy occurs in the summer or fall of that election season.
Thus, while a few Justices have been confirmed in the summer or fall of a Presidential election season, such confirmations are rare--only five times in our history have summer or fall confirmations been granted, with the latest--the latest--being the August 1846 confirmation of Justice Robert Grier.
In fact, no Justice has ever been confirmed in September or October of an election year--the sort of timing which has become standard in the modern confirmation process. Indeed, in American history, the only attempt to push through a September or October confirmation was the failed campaign to approve Abe Fortas' nomination in 1968. I cannot believe anyone would want to repeat that experience in today's climate.
Moreover, of the five Justices who were confirmed in the summer of an election year, all five were nominated for vacancies that had arisen before the summer began. Indeed, Justice Grier's August confirmation was for a vacancy on the Court that was more than 2 years old, as was the July confirmation of Justice Samuel Miller, in 1862.
Thus, more relevant for the situation we could be facing in 1922 is this statistic: six Supreme Court vacancies have occurred in the summer or fall of a Presidential election year, and never--not once--has the Senate confirmed a nominee for these vacancies before the November election.
In four of these six cases--in 1800, 1828, 1864, and 1956--the President himself withheld making a nomination until after the election was held.
In both of the two instances where the President did insist on naming a nominee under these circumstances, Edward Bradford in 1952 and Abe Fortas in 1968, the Senate refused to confirm these selections.
Thus, as we enter the summer of the Presidential election year, it is time to consider whether this unbroken string of historical tradition should be broken. In my view, what history supports, common sense dictates in the case of 1992. Given the unusual rancor that prevailed in the Thomas nomination, the need for some serious reevaluation of the nomination and confirmation process and the overall level of bitterness that sadly infects our political system and this Presidential campaign already, it is my view that the prospects for anything but conflagration with respect to a Supreme Court nomination this year are remote at best.
Of Presidents Reagan's and Bush's last seven selections of the Court, two were not confirmed and two more were approved with the most votes cast against them in the history of the United States of America.
We have seen how, Mr. President, in my view, politics has played far too large a role in the Reagan-Bush nominations to date. One can only imagine that role becoming overarching if a choice were made this year, assuming a Justice announced tomorrow that he or she was stepping down.
Should a Justice resign this summer and the President move to name a successor, actions that will occur just days before the Democratic Presidential Convention and weeks before the Republican Convention meets, a process that is already in doubt in the minds of many will become distrusted by all. Senate consideration of a nominee under these circumstances is not fair to the President, to the nominee, or to the Senate itself.
Mr. President, where the Nation should be treated to a consideration of constitutional philosophy, all it will get in such circumstances is partisan bickering and political posturing from both parties and from both ends of Pennsylvania Avenue. As a result, it is my view that if a Supreme Court Justice resigns tomorrow, or within the next several weeks, or resigns at the end of the summer, President Bush should consider following the practice of a majority of his predecessors and not--and not--name a nominee until after the November election is completed.
The Senate, too, Mr. President, must consider how it would respond to a Supreme Court vacancy that would occur in the full throes of an election year. It is my view that if the President goes the way of Presidents Fillmore and Johnson and presses an election-year nomination, the Senate Judiciary Committee should seriously consider not scheduling confirmation hearings on the nomination until after the political campaign season is over.
I sadly predict, Mr. President, that this is going to be one of the bitterest, dirtiest, Presidential campaigns we will have seen in modern times.
I am sure, Mr. President, after having uttered these words some will criticize such a decision and say it was nothing more than an attempt to save the seat on the Court in the hopes that a Democrat will be permitted to fill it, but that would not be our intention, Mr. President, if that were the course to choose in the Senate to not consider holding hearings until after the election. Instead, it would be our pragmatic conclusion that once the political season is under way, and it is, action on a Supreme Court nomination must be put off until after the election campaign is over. That is what is fair to the nominee and is central to the process. Otherwise, it seems to me, Mr. President, we will be in deep trouble as an institution.
Others may fret that this approach would leave the Court with only eight members for some time, but as I see it, Mr. President, the cost of such a result, the need to reargue three or four cases that will divide the Justices four to four are quite minor compared to the cost that a nominee, the President, the Senate, and the Nation would have to pay for what would assuredly be a bitter fight, no matter how good a person is nominated by the President, if that nomination were to take place in the next several weeks.
Senator Schumer says it would be contrary to the precedent set in the Garland nomination, in which the Biden Rule was actually invoked, to proceed with a Supreme Court nomination in this midterm election year. One of the main things we learn in law school is how to determine when a precedent is controlling and when it is distinguishable. Surely they taught that in Harvard Law School in the mid-70s, when Senator Schumer went there.
Decencyevolves: Scalia died with nearly a full year left in Obama’s term. Before Garland, six modern justices were nominated in the last year of a president’s term. All got a hearing, all got a vote, five were confirmed. What McConnell did was pure power politics, which he is very good at. He required a sixty vote margin for basically every meaningful piece of legislation during the Obama Administration, a first, and his obstruction of Garland was unprecedented. He stole the seat fair and square.
The Democrats will try to do the same before the midterms, but it’s an uphill battle. McConnell is more responsible for the destruction of norms and courtesies than anyone, but it had certainly served his interests. I don’t pay much attention, and no one really should, when the master of obstruction complains about obstruction.
Is he a hypocrite? Certainly. He’s also for the most part a pure partisan but at least he doesn’t pretend to be something else.
Should a President under active criminal investigation be nominating a Supreme Court Justice who will be ruling on his extraordinary claims, such as the power to pardon himself? That’s a rea question. If I were a Senator, that would concern me.
Thurgood Marshall announced his retirement on June 28, 1991. At that time, the Democrats had 56 Senators. Do you believe that if Antonin Scalia died eight months earlier, Mitch McConnell would have permitted a vote on Merrick Garland’s nomination, based on his deep acceptance of hypothetical statements made by Joe Biden in 1992?
Perhaps I’m a cynic, or perhaps watching McConnell all these years has made me one, but I kind of doubt it myself. To quote George W. Bush, “Fool me one, shame on you. Fool me twice, can’t get fooled again.”
I hope Senator Leahy agrees with this sentiments now that the GOP sunk the blue slip rule for a second time. Leahy foolishly resurrected it after Hatch killed it and now Grassley has killed it again.
While McConnell may hope Democratic Senators have endless credulity, I’m hoping they don’t. Fighting relentlessly has served him well and it’s time the Democrats did the same.
It's time the Democrats fought relentlessly? Gimme a break. The savage, vicious attacks on Robert Bork and Clarence Thomas were not "fighting relentlessly"?
It was the Democrats who turned nominations into blood sport. Republicans returned to normal during the Clinton Administration, when Justice Ginsburg was confirmed overwhelmingly despite her ACLU baggage. Then we were back to warfare again during the Bush 43 Administration, with the well-qualified Justice Alito getting a much narrower confirmation vote. Democrats did not have any more reason to vote against Alito than Republicans had to vote against Ginsburg, yet all but 3 Democrats voted against Alito while only 3 Republicans voted against Ginsburg.
On the Senate's nomination page, I only see three Presidential election year nominations from JFK forward: the ethically challenged Abe Fortas, the nominee to take Fortas's Associate Justice seat when he moved up to chief, and the Merrick Garland nomination in 2016. None of these came to votes.
Quite apart from these arguments, there is another reason why the Senate should not confirm a Trump appointee just now. As Professor Paul Berman notes:
“People under the cloud of investigation do not get to pick the judges who may preside over their cases. By this logic, President Trump should not be permitted to appoint a new Supreme Court justice until after the special counsel investigation is over, and we know for sure whether there is evidence of wrongdoing. . . . [N]ot enough attention has been placed on the crucial question of whether the Supreme Court in the Trump era will provide an effective bulwark against autocratic lawless rule.
Indeed, legal experts are already debating several knotty constitutional questions that involve the president and may one day soon have to be decided by the court. Can the president pardon himself or others specifically to extricate himself from criminal investigation? Can the president be compelled to testify before a grand jury? Can a sitting president be criminally indicted?
Did the appointment of the special counsel somehow violate the Appointments Clause of the Constitution, as some conservatives implausibly insist? Can a president ever obstruct justice? What is the proper legal remedy for Mr. Trump’s repeated violations of the Emoluments Clause? It is no exaggeration to say that never before has the selection of a Supreme Court nominee been so thoroughly compromised by the president’s profound personal interest in appointing a judge he can count on to protect him.”
Forgot the link: https://mobile.nytimes.com/2018/06/29/opinion/a-better-reason-to-delay-kennedys-replacement.html
The Democrats started the judicial wars, and now Trump and McConnell are going to end it.
And sorry, Strzok's insurance policy didn't pay out.
A power that the Constitution vests in the President can be suspended merely by launching an investigation? You've said some funny things on this blog, DE, but that's the best knee-slapper ever.
There are two and only two ways to remove power from a duly elected President -- impeachment and conviction under the original Constitution or a finding of disability under the 25th Amendment. That's it. Unless and until either of those happens, the elected President has all the powers vested by the Constitution, including nominating judges and appointing them upon confirmation by the Senate.
He has the power to nominate and as Mitch McConnell proved so plainly in 2016, the Senate can delay if it chooses, a move of which you heartily approved Kent. The question is what the Senate should do.
This is no usual investigation and no usual President. As Professor Berman points out:
“Mr. Trump’s possible crimes are inextricable from his desire for unilateral control of the federal government. It is no secret that the power of the executive branch has grown over the past several decades, under both Republican and Democratic presidents. Our executive now has surveillance capacities never before seen, vast power to conduct drone strikes and conduct lethal military operations abroad, broad authority to set immigration and law enforcement priorities and the ability to regulate enormous areas of economic and personal life.
Add to this sweeping institutional power a president who refuses to acknowledge any checks on his power as legitimate, whether those checks come from the courts, the legislature, the media, the government bureaucracy or his political opponents. This is the perfect recipe for autocracy. In such a world, the importance of checks and balances has never been greater.
This would be dangerous regardless of Mr. Trump’s legal shortcomings. But this president has, by his own admission, already taken steps to thwart an investigation into his own potential criminality. Both Democrats and Republicans in the Senate should therefore resist calls for a quick confirmation process.
Otherwise, there will be a stain on the legitimacy of this nomination, on the performance of whomever is confirmed and, even, on the Supreme Court itself. The fact that the president has every motive to ensure that happens — to promote his political agenda and to protect him personally — makes the present moment all the more frightening.“
Looking back over my 2016 posts or the Garland nomination, I don't see any hearty approval of the the move. This post, for example, is quite skeptical.
The notion that there would a stain on the legitimacy of a nomination is nonsense. The Senate is perfectly capable of judging the nominee on the merits and probing whether any promises have been made regarding future rulings on the investigation in the extremely unlikely event that anything comes of this that would make it to the Supreme Court.