With Justice Scalia’s sudden passing, the Supreme Court and our country has lost one of the most brilliant and ardent supporters of the U.S. Constitution. And now our nation faces a historic moment.
With the passing of the conservative lion of the Court, the next Supreme Court justice will alter the ideological composition of the Court for decades to come. Landmark cases about abortion, religious liberty, and Executive overreach will be decided in this term alone.
Article II, Section 2 of the U.S. Constitution provides, “[The President] shall have power… by and with the advice and consent of the Senate, shall appoint… judges of the Supreme Court.” The President is free to offer any nominees up at any time. But the U.S. Senate must provide advice and consent, which means at least 60 U.S. Senators must agree. Historically, Supreme Court nominees need even greater levels of bipartisan support to become lifetime justices.
Senate Majority Leader Mitch McConnell and Senate Judiciary Committee Chairman Chuck Grassley are both committed to letting the American people decide at the ballot box this November, letting our 45th President appoint Justice Scalia’s replacement. While President Obama remains free to appoint a conservative committed to upholding the Constitution as his replacement, he has given us no reason to believe he would.
So the American people should get to decide.
Historical precedent supports this deference in an election year under a divided government, in which opposing parties control the White House and the Senate. 1880 was the last time a Supreme Court vacancy was filled in a presidential election year with a divided government, when Republican President Rutherford B. Hayes appointed William Burnham Woods, who was confirmed by the Democrat-controlled Senate. To provide further historical perceptive, less than 50 votes were cast in that vote in the Senate.
It’s been more than 80 years since a Supreme Court justice was appointed by the President and confirmed by the Senate to fill a vacancy that arose in the presidential election year.
When Justice Oliver Wendall Holmes retired from the bench on January 12, 1932, Benjamin Cardozo was appointed by President Hoover on February 15 and confirmed by the Senate on February 24th. Importantly, even this case is one in which the same party controlled both the Presidency and the Senate.
Since then, for the two vacancies that have arisen during a presidential election year, they were not filled until the next term began after the election. In June 1968, President Lyndon Johnson nominated Abe Fortas to be the new Chief Justice and Homer Thornberry to fill Fortas’ associate justice seat. The Fortas nomination was withdrawn in October 1968 after failing to receive cloture and Thornberry’s nomination was withdrawn without a vote needed. President Nixon filled both seats after taking office.
Some have raised the case of Justice Anthony Kennedy’s appointment in 1987 and confirmation in 1988. However, this is a precedent that favors a strong Senate vetting of Supreme Court nominees and waiting until the next election. The vacancy filled by Justice Kennedy opened on June 26, 1987 when Justice Lewis Powell retired. President Reagan nominated Robert Bork on July 1, 1987. Senate Democrats strongly signaled opposition to a Bork nomination, but President Reagan nominated him anyway. After a months-long process, the Democrat-controlled Senate denied Bork’s confirmation on October 23, 1987.
President Reagan announced he would nominate Douglas Ginsburg, but this nomination was later withdrawn. Finally, Anthony Kennedy was nominated on November 30, 1987 and confirmed on February 3, 1988.
The vacancy was lengthy to allow the constitutional process to play itself out, the original nominee was blocked, and the Senate confirmed Justice Kennedy unanimously on February 3rd.
We are already past that point in this presidential election year, at a historic moment in which the Supreme Court’s ideological composition has never been more consequential.
Historical precedent strongly favors letting the people decide something so vitally important at the ballot box. It has been more than 135 years since a President of one party nominated and a Senate controlled by the other party confirmed a Supreme Court justice in a presidential election year. It has been more than 80 years since a President nominated and a Senate confirmed a Supreme Court justice in a unified government.
This is a prime opportunity for all branches of government to show that we still have a “government of the people, by the people, for the people."
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