Last Wednesday (March 16), President Obama nominated Merrick Garland to serve on the Supreme Court. Garland, the 63-year-old chief judge of the U.S. Court of Appeals for the District of Columbia, is widely considered a moderate. But after the announcement, Senate Republican leaders reiterated their stance that they did not intend to consider the nomination because it is an election year. Democrats, meanwhile, repeated their charge that Republicans have a “constitutional duty” to at least hold hearings and a vote on a nominee. So let’s tackle this issue. Does the Senate have a constitutional responsibility to consider a Supreme Court nomination?
Whatever happens to judge Garland’s appointment, the American people will undoubtedly look back on 2016 and ask why. Clarifying the Senate’s responsibilities on Supreme Court nominations, therefore, is important for holding our leaders accountable. And while we do not yet know whether or not the Senate will take action on Mr. Garland’s nomination to the Supreme Court, we do know some things.
First and foremost, we know what the Constitution says. Article II, Section 2 divides the responsibility for selecting and confirming members of the Supreme Court between the President and the Senate. It says that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the Supreme Court.” From that language, two things are clear: first, for as long as someone is president, the president retains the authority to make Supreme Court nominations (presuming there are vacancies); second, there is no constitutional requirement that the Senate acts upon that nomination. This being said, however, there is nothing in the Constitution that expressly declares, or even suggests, that the process for appointing Justices is suspended, delayed, or otherwise functions differently at any particular point in time.
Thus, it is instructive to look at what historical practices can tell us about Supreme Court appointments. While the Senate has shown great deference to the President on nominations to the Cabinet, it has shown less deference to a President’s choice for the Supreme Court. According to the Congressional Research Service, over nearly 230 years, Presidents have submitted 160 nominations for positions on the supreme court, of whom 148 received action on the floor of the Senate, and 124 were confirmed.
But what about the timing of the nomination? To begin with, it is important to note that not a single president – not one – has ever refused to make a nomination to fill a Supreme Court vacancy, even when they were lame ducks (defined as an official in the final period of office, after the election of a successor). In fact, six lame-duck presidents have made six Supreme Court appointments. Only four presidents have not made any Supreme Court nominations, and of the forty that have had the opportunity to make a nomination, thirteen of them (nearly a third) have appointed Justices during presidential election years. The first president to appoint Supreme Court justices in presidential election years was George Washington – he made two in 1796. Since Washington, five presidents in the twentieth century – William Howard Taft, Woodrow Wilson, Herbert Hoover, Franklin Roosevelt, and Dwight Eisenhower – made successful Supreme Court nominations in election years. Wilson, indeed, made two appointments in 1916.
Historical precedent, therefore, does not support the notion that the Senate has a tradition of shutting down the Supreme Court appointment process due to the timing of the nomination. But what about other evidence?
First, on March 16, Senate Majority Leader Mitch McConnell took to the Senate floor to argue that there is an informal Senate rule not to consider nominees during election years. “The next justice could fundamentally alter the direction of the Supreme Court and have a profound impact on our country, so of course the American people should have a say in the Court’s direction,” McConnell said. As support for this position, McConnell cited the so-called “Biden Rule”: “The Senate will continue to observe the ‘Biden Rule’ so the American people have a voice in this momentous decision.”
So what is the “Biden Rule”? In June 1992, Vice President Joseph R. Biden – then a Senator from Delaware – made the case for not filling a seat for a Supreme Court judge who was expected to retire in the final year of President George H. W. Bush’s term. At the time, the nation and Senate were recovering from the bruising hearings to confirm Justice Thomas – hearings which, if you don’t recall, included a “battle over accusations that he had sexually harassed a female subordinate years earlier.”
Speaking on the Senate floor, Mr. Biden reflected on the need to keep certain aspects of the nomination process confidential. Specifically, Biden announced that the Senate Judiciary Committee would: (1) advise sources that any information the Committee obtained would be placed in a nominee’s FBI file and be available on a confidential basis to the Senate before voting on the nomination; (2) hold closed, confidential sessions about all Supreme Court nominees; and (3) meet routinely with nominees in closed sessions, on the record, and under oath about any investigative charges.
If there are any “Biden Rules” in existence with regard to Supreme Court nominations, these are them. Conspicuously absent is any suggestion that the Senate would abandon its duty to engage in the confirmation process during an election year. But, in discussing the history of the nominations, Mr. Biden noted that when a President sought to appoint a justice in the summer or fall of an election year, that typically resulted in failure. In contrast, when the President selected candidates before the summer, the Senate would hold confirmation hearings. Not a rule – an observation.
Second, some pundits and politicians attach importance to the 1968 nomination of Justice Abe Fortas to replace Earl Warren as Chief Justice and Homer Thornberry to take Fortas’s seat, but the Senate confirmed neither. Fortas was the target of a bipartisan filibuster – principally in reaction to the Warren Court’s liberalism and serious ethical questions about Fortas (Fortas accepted inappropriate gifts from wealthy individuals with frequent business before the Court; something that caused him to resign in disgrace shortly after his nomination). But the critical fact here is this: the Senate actually held hearings on the two nominations – twenty-two, in fact.
There is, in short, no constitutional or historical support for the Republican claim that the Supreme Court confirmation process is suspended during presidential election years. But even if there was, as Michael Gerhardt noted SCOTUSblog, “[p]ast choices are not constitutional rules. Our leaders still must take responsibility for their own decisions, rather than pass them off on their predecessors, and the public’s job is to hold them responsible.” The Republican obstructionism here, simply stated, is pure politics. Whether or not it is good politics is a separate question entirely. But it is one that We the People can provide an answer to in November.
Featured Image Credit: The White House on Flickr (United States government work)