The current situation is unprecedented, and not just by virtue of the level of the obstruction Senate Republicans are proposing. It is a happenstance of history but in the modern era, a Supreme Court seat has almost never come open in an election year while the Senate is controlled by the opposite party of the president.
(The one time it did happen, in 1956, President Eisenhower recess-nominated a Democrat, William Brennan.)
While the Senate has the raw power to simply refuse to consider a Supreme Court nominee, the chance to do so in the final year of an opposing president’s term has simply not come up.
“[Vacancies] just doesn’t happen very often in an election year,” Timothy Johnson, a political science professor at the University of Minnesota, told TPM. “The claim that the Republican president candidates are making that this hasn’t happened in 80 years is accurate to the extent that it rarely ever happens in a presidential election year.”
It is also a happenstance that so many historical threads have converged at this moment. Justice Antonin Scalia died unexpectedly in an election year. The court was divided 5-4 between conservative and liberal justices. The court’s decades-long conservative majority hangs in the balance. And more prosaically but still a powerful factor is that Scalia himself was a conservative lion for the ages, whose replacement by a liberal nominated by this particular President would be be the ultimate affront to conservatives.
Since 1900, there have been five occasions when presidents have been able to get their nominees confirmed when the seat came open in their final year in office, according to SCOTUSblog. It happened in 1912, twice in 1916 (once when a justice died in January and a second time when a justice resigned in June to run for president), 1932, and 1940.
But in each of those five cases, the Senate was controlled by the President’s party.
The nomination battle most often cited since Scalia’s death occurred in the final years of President Reagan’s second term. The events that unfolded then are being claimed by both parties now to justify their current positions.
Reagan was seeking to fill a vacancy left by Justice Lewis Powell, a moderate who announced his retirement in June of 1987, more than 18 months before the end of Reagan’s second term. Reagan’s initial nominee Robert Bork, a former solicitor general and an appeals court judge, became an immediate target for the left, who labeled him a conservative extremist.
“There was this pre-emptive ideological assault on the nominee which then got played out in the Senate hearings,” Eric Lomazoff, a political science professor at Villanova, told TPM. “There was no doubt that Robert Bork was qualified in terms of his legal background. It simply turned into a full scale fight about the type of justice he would be.”
In this Sept. 15, 1987 file photo, former President Gerald Ford, left, introduces Supreme Court Associate Justice nominee Robert Bork, as the Senate Judiciary Committee began confirmation hearings on the nomination on Capitol Hill. At right is Sen. Robert Dole (R-KS) who also made a statement on Bork.
While partisan politics always influenced nomination process since the beginning of the Supreme Court, the fight over Bork’s confirmation represented a turning point in the level of its rancor and the involvement of outside groups. But Bork was given a hearing and ultimately a vote, where he was rejected in 42-58 vote that included some Republicans.
“Robert Bork is just different. He was a one-off. Everyone else who is highly qualified generally gets their day in the Senate and more often than not, highly-qualified nominees do end up being confirmed,” Johnson said.
After Reagan’s next nominee Douglas Ginsburg, withdrew because of a controversy over his use of marijuana, Anthony Kennedy, was nominated. By then it was November 1987, but it still more than a year before the end of Reagan’s presidency. Kennedy, a moderate, sailed through the Senate on a vote of 97-0 in February 1988.
Democrats are now pointing to their support of Kennedy in his February 1988 confirmation vote to argue that the Senate — even a Senate controlled by the party opposing the president — has been willing to confirm nominees in the same year as an election. Republicans counter that Reagan offered him as nominee the calendar year before, in November, and for a vacancy that had opened up in the summer prior.
“To me, what’s really different is at least with Bork they allowed a vote,” said John Maltese, a political science professor at University of Georgia and author of “The Selling of Supreme Court Nominees.”
“It seems to me that it’s a real difference to say we’re not even going to consider a nomination,” Maltese said.
One has to travel back to the mid-19th century to find echoes of the kind of arbitrary blockade Republicans are threatening now. However, also in the 1800s are examples of the Senate confirming an election-year nominee of president of the opposing party, for instance, the Senate’s approval of Justice Williams Woods and Justice Melville Fuller.
While politics has always played a role in the nominating process, those battles have not been pegged solely on an upcoming election. They have at least been waged over a particular nominee, and not just the president’s authority to nominate a justice in the first place.
Majority Leader Mitch McConnell (R) now has the opportunity to set a new precedent for the modern era on the wielding of the Senate’s advice and consent power.
Lead photo: A group with People for the American Way from Washington, gather with signs in front of the U.S. Supreme Court in Washington, Monday, Feb. 15, 2016, as they call for Congress to give fair consideration to any nomination put forth by President Barack Obama to fill the seat of Antonin Scalia. (AP Photo/Carolyn Kaster)