By Dan McLaughlin
Published August 7, 2020
History supports Republicans filling the seat. Doing so would not be in any way inconsistent with Senate Republicans’ holding open the seat vacated by Justice Antonin Scalia in 2016. The reason is simple, and was explained by Mitch McConnell at the time. Historically, throughout American history, when their party controls the Senate, presidents get to fill Supreme Court vacancies at any time — even in a presidential election year, even in a lame-duck session after the election, even after defeat. Historically, when the opposite party controls the Senate, the Senate gets to block Supreme Court nominees sent up in a presidential election year, and hold the seat open for the winner. Both of those precedents are settled by experience as old as the republic. Republicans should not create a brand-new precedent to deviate from them.
Twenty-nine times in American history there has been an open Supreme Court vacancy in a presidential election year, or in a lame-duck session before the next presidential inauguration. (This counts vacancies created by new seats on the Court, but not vacancies for which there was a nomination already pending when the year began, such as happened in 1835–36 and 1987–88.) The president made a nomination in all twenty-nine cases. George Washington did it three times. John Adams did it. Thomas Jefferson did it. Abraham Lincoln did it. Ulysses S. Grant did it. Franklin D. Roosevelt did it. Dwight Eisenhower did it. Barack Obama, of course, did it. Twenty-two of the 44 men to hold the office faced this situation, and all twenty-two made the decision to send up a nomination, whether or not they had the votes in the Senate.
Nineteen times between 1796 and 1968, presidents have sought to fill a Supreme Court vacancy in a presidential-election year while their party controlled the Senate. Ten of those nominations came before the election; nine of the ten were successful, the only failure being the bipartisan filibuster of the ethically challenged Abe Fortas as chief justice in 1968.
The bottom line: If a president and the Senate agree on a Supreme Court nominee, timing has never stopped them. By tradition, only when the voters have elected a president and a Senate majority from different parties has the fact of a looming presidential election mattered. When there is no dispute between the branches, there is no need to ask the voters to resolve one.
Grassley has repeatedly
that he would not go forward with a nomination if he was still chairman, because it would look hypocritical to go back on the Garland precedent and confirm a nominee in an election year. But an election year alone is not the historical rule. It is not what Mitch McConnell said at the time, and it is not what Grassley said at the time, either. The fact of divided government was what connected their concerns about an election-year nomination to historical practice.
The political reality behind the so-called “Biden rule” frequently invoked by McConnell and Grassley in 2016 is that the Senate in 1992 was held by Democrats, and by warning the first President Bush against an election-year nomination, Biden was asserting the partisan prerogatives of the Democratic Senate majority. In fact,
Biden in his June 1992
speech on refusing to confirm any election-year Bush nominees leaned explicitly on the different standards applicable to divided government:
What distinguished the Reagan-Bush Justices from these historical parallels . . . is that half of them have been nominated in a period of a divided government. . . . Since 1968, Republicans have controlled the White House for 20 of 24 years. Democrats have controlled the Senate for 18 years of this period. The public has not given either party a mandate to remake the Court into a body reflective of a strong vision of our respective philosophies. . . .
If in this next election the American people conclude that the majority of desks should be moved on that side of the aisle, there should be 56 Republican Senators instead of 56 Democratic Senators, 44 Democratic Senators instead of 56 or 57 Democratic Senators, and at the same time if they choose to pick Bill Clinton over George Bush, we will have a divided Government and I will say the same thing to Bill Clinton: In a divided Government, he must seek the advice of the Republican Senate and compromise. Otherwise, this Republican Senate would be totally entitled to say we reject the nominees of a Democratic President who is attempting to remake the Court in a way with which we disagree.
To be sure, McConnell did not spell out all the elements of his precedential argument every time he spoke on the subject, and other Republican senators regularly couched their responses in broad terms about a pending election that did not grapple with the historical precedents. But Grassley, like McConnell, repeatedly cited the precedents on which his committee was relying:
February 22, 2016, in a floor statement
: “Republicans hold the gavels in the Senate. And a term limited Democrat in the twilight of his presidency occupies the White House. . . . Justice Scalia’s death marks the first time a sitting Supreme Court Justice has passed away in a presidential election year in 100 years. And it’s the first time a sitting Supreme Court Justice passed away in a presidential election year during divided government since 1888…”
February 23, 2016, in a Judiciary Committee letter
to McConnell on not holding hearings: “Not since 1932 has the Senate confirmed in a presidential election year a Supreme Court nominee to a vacancy arising in that year. And it is necessary to go even further back — to 1888 — in order to find an election year nominee who was nominated and confirmed under divided government, as we have now.”
February 26, 2016, in an
entitled “Giving the People a Voice — The Supreme Court Vacancy”: “History supports this practice. Not since 1888 has an election year nominee been confirmed during a divided government to fill a vacancy occurring in the same year.”
May 10, 2016, in a
on “Debunking SCOTUS Myths”: “In 2012, the American people re-elected Barack Obama as President of the United States. In 2014, the American people elected their respective members of Congress, handing over control of the United States Senate to Republicans. . . . Nominating and confirming a Supreme Court justice in a presidential election year, particularly under divided government, would be unprecedented in modern American history. It has been
since a Supreme Court justice was nominated and confirmed in a presidential election year while the president’s opposing party controlled the Senate (1888, President Grover Cleveland, Justice Melville Fuller).”
At the time, Grassley cited
, both citing the divided-government factor and its history.