Election Years, Supreme Court Nominees, and the Grand Obstruction Party
On this date (March 23) in 1888, Chief Justice of the United States Morrison Waite died unexpectedly of pneumonia.
This is relevant today because 1888 was the most recent time a Supreme Court vacancy opened with a Democrat in the White House and the GOP holding a Senate majority. It was also an election year, so it is the best comparison history provides for today’s situation.
Justice Waite died 228 days before that year’s election. Justice Scalia’s death happened 269 days before this year’s election day.
On the last day of April 1888, Democrat Grover Cleveland nominated Melville Fuller, a party loyalist and accomplished lawyer (but not a judge) to replace Justice Waite. This occurred 40 days closer to election day than Judge Merrick Garland’s nomination by President Obama.
In 1888, there was Republican opposition to the nomination, and some engaged in character assassination. But in the end, a handful of Republicans crossed party lines and Fuller was confirmed on July 20, 1888, 81 days after he was nominated.
This year, the GOP’s main argument against holding confirmation hearings is “the Biden Rule,” derived from a floor speech he gave arguing for a revision of the Senate’s confirmation process. One of the paragraphs most cited:
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.
Senate Majority Leader Mitch McConnell, Judiciary Chairman Chuck Grassley, and veteran Senator Orrin Hatch have all claimed this passage as justification for their decision to not even consider Judge Garland’s nomination. While there is certainly a good argument to be made that this part of Biden’s speech is taken out of full context, that’s not the point I’m making today.
The point is this: Biden’s speech was delivered on June 25, 1992. If Judge Garland’s confirmation vote were to occur 81 days after his nomination, as Justice Fuller’s was in 1888, it would occur on June 5.
Biden’s speech–the core element of the justification claimed by the GOP for obstructing the Garland nomination–occurred three weeks later in the year. If it’s applicable at all, it’s not applicable yet. And if the 1888 precedent were applied today, it would be a moot argument come June 25.
But it’s not just Fuller’s 1888 nomination that’s at issue. Since 1888, there have been 13 confirmation votes where the President was a Republican and the Senate had a Democratic majority.
The average time between nomination and vote with such a divided government: 65 days.
The longest of these 13 cycles was Judge Robert Bork, who waited 114 days to lose a confirmation vote. If Judge Garland has to wait 114 for his vote, it will happen on July 8–four months before the election.
If any precedent were applied here, the Supreme Court would have a full slate of justices in plenty of time for its next session, which starts in October regardless of who’s leading the presidential polls.
But the GOP is operating without precedent.
We’re only at seven days for Judge Garland. But Senate Republicans have made it clear they have no plan to fulfill their obligatory Constitutional role until after the November election. Some have let slip that they would consider Judge Garland during the lame duck session if their preferred candidate (Donald Trump?) loses the election. Nothing could make their true motivation–fixing the politics of the nominator–more plain.
Inauguration Day may be the 310th day following Merrick Garland’s nomination to the high court. If there’s been no confirmation vote by Inauguration Day, and if his nomination has not been withdrawn, Garland will have waited longer for a vote than Justices Sotomayor, Alito, Roberts, Ginsburg, and Thomas – combined.
If a nomination-to-confirmation process gets done in 65 days once a new President takes office, the Senate will have caused a vacancy on the Supreme Court to extend for more than a year–longer than any vacancy since the Civil War.
An entire year of work by the nation’s highest court will have been impacted. Cases would be reheard. Legislation will be impacted. Parties will have had to wait a year for justice. All because the Senate majority in the GOP is choosing its political preferences over its official duty. Party over patriotism.
There is no precedent in the last 150 years for this course of action. These are uncharted waters. And where they lead is bothersome.
What’s to stop a future Senate from obstructing the nomination process for more than a year? Should the election leave the Senate and White House divided as they are now, what’s to stop the Senate from following the real logic at work today and refuse to consider a Supreme Court nominee until after the 2020 election?
The law won’t stop them. The Constitution was written broadly and generally, leaving the conduct of business for future politicians to sort out for themselves. The rules and norms of Congress have been shaped over generations, and it’s largely due to the comity of the members that the people’s business gets done, however imperfectly.
Another possible way out, one that I think becomes more likely the longer the people are left to consider the motivations and specious arguments of Senators McConnell, Grassley, and Hatch, is that the GOP will lose their majority in the Senate.
Such as loss would serve as a powerful disincentive for similar overreaching in the future.
Today’s GOP Senators, unlike those of 1888, have clearly put party loyalty ahead of doing the job they were elected to do, and the falseness of their claimed motivation is plain.
History will surely look upon them poorly. What remains to be seen is if the American people will punish them in November.