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Rubes on the Court: A Scatological Close Read

AP Photo / Matt Rourke

They can do this. There's no power in our system to prevent it. It isn't unconstitutional, as some have suggested. It would be better call it non-constitutional, since it ignores the express responsibilities assigned to the Senate. But, whatever. They can do it.

But in the few days since Justice Scalia's death, there's been a rush to manufacture some precedent or argument for why this is anything more than a power play. One of the choicest has been this idea that there is a precedent or tradition going back eighty years that Supreme Court vacancies that come open in the last year of a President's four year term, i.e., in an election year are deferred to the next president.

Here's Marco Rubio's version of the argument from an interview on CNN ...

This is a tradition that both parties have lived by for over 80 years where in the last year if there is a vacancy in the last year of a lame duck president, you don't move forward. The president can nominate someone but the senate has said we're not moving forward on it, that the next president should have the opportunity to fill this vacancy. We're going to have an election in November. This will be an issue in the election where the candidates will describe the kind of justice they would appointing. I think that will be one of the factors how they make their decision and then the new president can appoint someone and the senate should move forward on the confirmation process then. I don't think you should appoint someone to a lifetime appointment by a lame duck president who is no longer accountable to the electorate.

Again, as I said, this bear close analysis. Technically speaking, this is complete horseshit, which has no factual basis whatsoever. But let's look at the argument.

First of all, there's no tradition or precedent about this whatsoever. What Republicans are hanging their hats on is the fact that Supreme Court vacancies don't happen very often. Over there last eighty years, they've only happened during an election year a few times. So the argument comes down to: Look, we haven't held confirmation hearings during an election year in 80 years. So it's a tradition not to hold them. And that's a longstanding tradition.

But that's because there weren't any vacancies! So basically it means nothing. It's a logical sleight of hand that, if it were a magic trick, would probably get past a dog but probably not even most primates.

But actually, it did happen a few times. The 'eight decade' marker refers to Herbert Hoover's nomination of Benjamin Cardozo in February 1932. (Hoover of course went on to lose that election to Franklin Roosevelt.)

(Scotusblog has a less entertaining version of the history here.)

Then just eight years later, Franklin Roosevelt nominated Frank Murphy in January 1940 (Roosevelt had yet to officially announce that he planned to run for a third term as President.)

Then it happened again in June 1968 when Chief Justice Earl Warren announced his retirement. President Johnson nominated Abe Fortas, then an Associate Justice. Fortas' nomination ended up being withdrawn about a month before the 1968 election (by which time Johnson has announced he was not running for reelection) because of a mix of ethics questions and Southern Democrats concerned about the liberal direction of the Court under Earl Warren. Fortas resigned from the Court entirely after the ethics issues bloomed into a full-fledged scandal in 1969. So President Nixon ended up nominating the replacements for both Warren and Fortas.

After that it didn't happen again until 1988 under President Reagan. In this case, it gets sort of technical since Justice Anthony Kennedy was nominated on November 30th 1987 and confirmed on February 3rd 1988. So which date counts in terms of the non-existent 'no SCOTUS vacancies filled in an election year' rule. How many corners does a circle have? Three or four? It makes about as much sense.

So again, the whole argument is nonsensical: the fact that there haven't been any vacancies in an election year means there's a tradition of not accepting nominations in an election year. Which of course makes no sense. Except for the fact that it actually has happened three times. And never was it suggested in any of these three cases that the mere fact that it was an election year was an argument for rejecting a nomination, let alone not even holding hearing or holding a vote.

Finally you have Rubio's the last argument which is that President Obama shouldn't nominate the next Justice because he is "a lame duck president who is no longer accountable to the electorate."

This appears to mean that a second term president should not nominate Justices for the Court after their reelection (so Obama's been out of like since early 2013) or at the latest after the mid-term election in their second term (in which case he was out of luck a year ago). If the former case, then Alito and Roberts wouldn't have been legitimate either. And in any case, even the idea that no Justices should be replaced in the last two years of a two term president's time in office is blatantly contrary to the intent of the constitution and simply preposterous.

But again, consider that this argument is being made all over the place by all sort of senators, presidential candidates and an almost countless list Republican yahoos. And reporters treat it as a reasonable argument in the debate.