Here's What Happened Last Time An Outgoing President Made A Supreme Court Nomination

There's no recent precedent for the crisis Scalia's death just triggered.

Just minutes after news broke Saturday afternoon that Antonin Scalia had died at 79, Republicans said they would not confirm President Barack Obama's nomination to replace the conservative Supreme Court justice -- no matter who it is. "Justice Scalia was an American hero," Sen. Ted Cruz (R-Texas), a presidential candidate and member of the Senate Judiciary Committee, tweeted Sunday. "We owe it to him, & the Nation, for the Senate to ensure that the next President names his replacement."

Republicans control the U.S. Senate, which must approve Supreme Court nominees. They believe the next president could be a Republican who would nominate a conservative replacement for Scalia, instead of the liberal Obama would be likely to nominate.

It's tempting to look to history to figure out what might happen now. But there aren't any directly comparable recent episodes.

No president in recent memory has faced a Supreme Court vacancy that opened during his final year in office. Justice Anthony Kennedy, the court's current swing vote, took office during Ronald Reagan's final year in office. But Reagan had nominated him the previous November. He was Reagan's third choice -- after Robert Bork, who was rejected by the Senate, and Douglas Ginsburg, who withdrew from consideration. And the vacancy he was filling had opened the previous July. 

The most recent broadly similar situation occurred in June of 1968 (an election year), when President Lyndon Baines Johnson, who had said he would not run for re-election, nominated Associate Justice Abe Fortas to take over as chief justice of the Supreme Court. Republicans and conservative southern Democrats filibustered Fortas' nomination, and Johnson eventually withdrew it.

But there are a few key difference between the Fortas situation and Scalia's passing.

First, Fortas was already on the court. The nomination was to make him chief justice, not to bring him on, and making him chief justice would not have changed the court's ideological makeup. (When Johnson nominated Fortas for chief justice, he also nominated Homer Thornberry, a judge and former congressman, to fill Fortas' seat. But when the Senate rejected Fortas for chief justice, Thornberry's nomination died, too.)

Second, there were ethical concerns involved. Fortas was criticized for accepting $15,000 for speaking at American University's law school -- money that was provided by corporations. Obama will aim to nominate someone whose ethics are beyond question.

Finally, today's politics -- in which most conservatives are Republicans and most liberals are Democrats -- are dramatically different than those of 1968, when both parties were split. 

There's an informal Senate rule that came out of the Fortas fight that Republicans will likely claim applies here. That's the "Thurmond rule," named after former Sen. Strom Thurmond (R-S.C.), which, in the words of my colleague Ryan Grim, means "no lifetime judicial appointments would move in the last six months or so of a lame-duck presidency." Obama has more than six months left in his tenure, but remember, this is an informal rule -- it's not written down anywhere.

Mitch McConnell, the Republican Senate majority leader, controls the Senate's agenda. He's already said that the next president should appoint Scalia's replacement. And there's no telling whether Sen. Chuck Grassley (R-Iowa), who heads the judiciary committee, will even allow Obama's nominee a hearing. He's been dragging his feet with lower court appointees as it is.

Expect a fight.


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