President Obama says he is looking for a Supreme Court nominee with “a sterling record,” “a deep respect for the judiciary’s role,” and “an understanding of the way the world really works.” He may find someone who meets those qualifications, to his satisfaction, but to Senate Republicans it will make no difference.
In an act of separation-of-powers defiance with no historical precedent, the Senate’s Republican majority has vowed not to vote or even hold a hearing on the nominee Obama plans to choose to fill the vacancy left by the death of Justice Antonin Scalia. If the Republicans stick to their plan, the court, already one justice short for most of this term’s decisions, likely will be short-handed as well for all or virtually all of the term that ends in June 2017.
Senate Majority Leader Mitchell McConnell announced the no-vote/no-hearing position within hours after the news of Scalia’s death on a Saturday afternoon [Feb. 13]. Many observers wondered whether it could possibly hold. And a few Republicans appeared to dissent. But McConnell emerged from a post-Presidents Day recess Republican caucus on Tuesday [Feb. 23] to tell reporters that “virtually everyone” in the GOP conference was on board. “The overwhelming view,” McConnell said, “is that this vacancy should not be filled by this lame-duck president.”
The GOP snub is so complete that Republicans are saying in advance that they will not even give an Obama nominee the ritualistic courtesy meeting. “I don’t see the point in going through the motions,” Sen. John Cornyn, one of the two Texans on the Judiciary Committee along with presidential hopeful Ted Cruz, told reporters. In advance of the caucus, all 11 of the Judiciary Committee Republicans, Cruz included, had signed a letter in effect pledging allegiance to the no-hearing stance.
The Senate is a hurdle for Supreme Court nominees, just as the Framers of the Constitution intended by requiring senators’ “advice and consent” before the lifetime appointments. But in the modern era of public hearings for Supreme Court confirmations that began in 1916, no nominee has been denied a hearing and only one has been denied a vote: Abe Fortas, filibustered in 1968 by Republicans. GOP senators opposed his elevation to chief justice because of ethics issues and liberal views.
Constitutional text and historical practice clearly support a president’s right to nominate Supreme Court justices up to the end of his term. By my count, 19 Supreme Court justices have been confirmed by the Senate in a president’s last full year in office. In addition, Justice William J. Brennan Jr. was recess-appointed by President Dwight Eisenhower in October 1956, one month before the presidential election, and then confirmed by the Senate in 1957.
Obama is, of course, not a lame-duck president in the true sense of the political term: a president still holding office after the election while awaiting the inauguration of a successor. Two lame-duck appointments illustrate the different possible outcomes. John Adams nominated and won confirmation of the great chief justice John Marshall in January 1801 as he prepared to turn the office over to his partisan adversary, Thomas Jefferson. Sixty years after, the outgoing president James Buchanan nominated his secretary of state and fellow Pennsylvanian Jeremiah Black for the Supreme Court, but the Senate with a newly elected Republican majority rejected Black by a 25-26 vote, saving the seat for Republican Abraham Lincoln to fill.
Constitutional text and historical practice thus fully support the Senate’s prerogative, as McConnell and other Republicans are putting it, to “withhold” consent. Out of 154 nominations through history, 29 have failed to win Senate confirmation. Interestingly, most of those failed nominations 22 by my count failed before 1900, typically more because of partisan politics than legal ideology.
Despite the increasing politicization of the confirmation process, only six nominations failed in the 20th century. Civil rights groups and organized labor set the precedent for modern confirmation battles by engineering the Senate’s 41-39 rejection of President Herbert Hoover’s nomination of federal judge John J. Parker in 1930.
When Fortas’s nomination failed, so too did President Lyndon Johnson’s nomination of federal judge Homer Thornberry to fill Fortas’s seat as associate justice. Stung by the episode, liberal groups massed the next year to defeat President Richard M. Nixon’s successive nominees for the vacancy created after ethics issues forced Fortas to resign. Two decades later, the same coalition of liberal forces lobbied to block President Ronald Reagan’s nomination of the conservative federal judge Robert Bork in 1987.
The last of the failed nominees was Harriet Miers, chosen by the Republican president George W. Bush in 2005 with the Senate then under Republican control. Miers received no hearing only because she withdrew after an unenthusiastic reception from Republicans and conservatives.
For better or worse, politics shaped all of these succession episodes. Filling the vacancy was bound to be a political challenge for Obama, an outgoing president facing an opposition-controlled Senate. But, astoundingly, Senate Republicans refuse to take the responsibility for considering a nominee and then voting up or down. That would be the better course for doing their job, as the Democrats put it, and then, as the Republicans are phrasing it, letting the American people decide.