Senator Mitch McConnell's determination not to even consider President Obama's nominee for the US Supreme Court is without precedent. Senate Judiciary Chairman Chuck Grassley has said he will not hold hearings, and Senator Ted Cruz, who wants to be president, has promised to filibuster this nomination. No Senate has ever acted in this way before. All three senators claim to be conservatives. In fact, they are all acting more like revolutionaries or anarchists. They are not interested in the Constitution, the law, or more than two hundred years of American history.
Their argument is that the next president should make this nomination, because it is now an election year. In essence, they argue that in the final quarter of a president's term, there should be no important decisions made. They are attempting to reduce the president's term from four years to three.
In November, 1987. President Ronald Reagan was in the last year of his final term. The Democrats controlled the Senate, 55 to 45. That, of course, is a nearly perfect mirror image of today, when we have a Democratic president and Republicans have a 55 vote majority in the Senate. But there is a key difference between the two situations: when President Reagan nominated Anthony Kennedy the Democrats in the Senate, led by George Mitchell, held hearings and then voted to confirm him. The Republicans today refuse to even consider President Obama's nominee.
One wonders what Justice Kennedy thinks of the behavior of Senator McConnell and his colleagues? Does he cringe at the notion that he would not have his job if the Democrats had acted this way in 1988?
Kennedy is one of 14 justices (including three Chief Justices) who were confirmed during an election year, or after a presidential election took place. It is a tradition that dates back to the Court's very early years.
In January 1796 George Washington nominated Samuel Chase to the Court. By this time Washington had indicated he would not run for a third term, but no one in the Senate suggested the nation needed to wait more than a year to replace Justice John Blair, who had retired. Chase was confirmed the next day. Two months later, the Senate confirmed Washington's choice of Oliver Ellsworth as the third Chief Justice of the United States.
In January 1801, John Adams had already been defeated in the election of 1800. But, not even the supporters of his victorious opponent, Thomas Jefferson, argued that Adams did not have the right to nominate a new Chief Justice. Adams nominated John Marshall, who he described as his "gift" to the American people. The Senate confirmed Marshall, and he went on to be our greatest Chief Justice. To this day much of our constitutional history and constitutional law focuses on his landmark opinions.
Lame duck presidents filling vacant seats was not merely a practice in the early republic.
In 1844-45 the Senate refused to confirm four nominees of President John Tyler. President Tyler was a lame duck who had become president after the death of William Henry Harrison. He had very little political clout and no support in either political party. The senate rejected all four nominees because they were viewed as unfit for the job, not because Tyler was at the end of his term and would not be running in the 1844 election. In February, 1845, after the election was over and Tyler had less than a month to serve, the Senate confirmed his fifth choice for the Court, Samuel Nelson of New York.
In December 1851, eleven months before the next presidential election, Millard Fillmore sent the name of Benjamin R. Curtis to the Senate. At the time, Fillmore claimed he was not going to seek his party's nomination for the 1852 election, and thus he was viewed as a lame duck president with an election looming. Nevertheless, the Senate confirmed Curtis only nine days after he was nominated.
Election year nominations continued after the Civil War with no one arguing such nominations were illegitimate. In December 1880, the Democratic Senate confirmed William B. Woods, the choice of the lame duck Republican, President Rutherford B. Hayes. Eight years later, just a few months before the presidential election, the Senate confirmed Melville Fuller, President Grover Cleveland's nomination for Chief Justice. In July 1892, four months before the election, the Senate confirmed Benjamin Harrison's nominee, George Shiras. Harrison lost that election, yet in February 1893, less than two weeks before he would leave office, the Senate confirmed his last nominee, Horace Jackson. And in March 1912, less than eight months before the 1912 presidential election, the Senate confirmed President William Howard Taft's nominee Mahlon Pitney.
In January 1916 -- almost exactly 100 years ago -- a Supreme Court justice appointed by William Howard Taft (the most conservative Republican president to that point) died. President Woodrow Wilson, a progressive Democrat, had a chance to begin to reshape the Supreme Court. But Wilson was up for reelection, with no guarantee he would be reelected. Indeed, in the previous 76 years only two presidents had been elected to two consecutive terms. Many Republicans expected Wilson to lose the upcoming election.
Wilson nominated Louis D. Brandeis, a famous but controversial public interest lawyer, to the Court. He was known for taking on insurance companies, powerful public utilities, and banks. His book, Other People's Money and How the Bankers Use It, hardly endeared him to Wall Street. On top of all this, he was the first Jew to be nominated to the Court, and the country was in an age of rampant anti-Semitism.
The Republicans in the Senate hoped the nomination would fail, and they held endless hearings trying to undermine support for Brandeis. But no one in the Senate thought the President should not nominate someone to fill the vacant seat in an election year or that the Senate should not act on it.
In the end, after a four month confirmation process -- the longest in our history -- the Senate confirmed Brandeis in June, five months before a presidential election.
Brandeis went on to be one of our most important and influential Justices, and even one of his opponents, ex-President William Howard Taft, later came to admire and respect Brandeis when Taft himself joined the Court as Chief Justice in 1921.
Nine days after Brandeis's confirmation, Justice Charles Evans Hughes, also a Taft appointee, was nominated to be the Republican candidate for president, and resigned his seat on the Court. Wilson nominated John H. Clarke. Again, despite the election being mere months away, no one argued that in the heat of his reelection campaign Wilson should not be allowed to nominate someone to the Court, and Clarke was confirmed unanimously within ten days.
In 1932, in the depths of the Great Depression, Herbert Hoover was about as unpopular as a president could be. That fall he would be overwhelmingly defeated for reelection. By July he was already essentially a lame duck. But the Senate quickly confirmed his nominee, Benjamin Cardozo. In the election year of 1940 the Senate confirmed Frank Murphy.
In November, 1975, less than a year before the next election, President Ford, a Republican, nominated John Paul Stevens to the Court. Ford was our first, and only, unelected president. He had been appointed vice president when Spiro Agnew resigned in disgrace, and then became president when Richard Nixon also resigned in disgrace. Nevertheless, when he sent his nominee to the Senate, the Democratic leadership did not assert that with an election less than a year away, this unelected president had no right to nominated someone to the Court. Instead, in December 1975 the Senate confirmed Stevens. This stands in marked contrast to President Obama, who has been twice elected by a popular and electoral college majority, but nevertheless faces a Republican Senate that will not even consider his nominee.
As noted above, in February 1988 the Democratic majority in the Senate confirmed Anthony Kennedy, who is still on the Court today. At the time many observers thought the Democrats would win then 1988 presidential election, and, had the Democrats acted like Senator McConnell and his party, they would have refused to hold hearings on the Kennedy nomination and refused to vote the nomination up or down. But, acting responsibly, the Democrats held hearings and confirmed him.
The history is clear. Until now with the passing of Justice Scalia, no Senate leaders have asserted that a sitting president does not have the power to nominate someone for the Court and that the Senate does not have an obligation to consider that nomination. Not all late term nominations have been successful, but never before has the Senate refused to even consider them.
The proposals of Senator McConnell and his allies are unprecedented, and if they had been adopted at other times, such Chief Justice John Marshall and Justices Louis Brandeis and Anthony Kennedy, would never have served on the Court. Equally significant, at a number of crucial times, the Court would have been both understaffed and had an even number of justices, leading to inconclusive decisions in important cases.
We might be able to take McConnell's stance more seriously if the remaining Republican presidential candidates -- Trump, Cruz and Kasich -- all publicly pledged that if elected they will not to make any court nominations during the last quarter of their term. So far none of them has stepped up to do so, and Senator Cruz, while indicating that he will filibuster the nomination, has failed to pledge that if elected he would not nominate any judges in 2020.
The Republicans, led by Senators McConnell and Grassley, have offered a revolutionary notion of their constitutional role that is at odds with the entire history of the United States. This position is an assault on the legacy of presidents from George Washington to Ronald Reagan and to the many Senators who over the last two centuries confirmed highly qualified Justices, putting the welfare of the nation and the honor of the Constitution above their narrow political self-interest.