History Is on the Side of Republicans Filling a Supreme Court Vacancy in 2020
National Review•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.
During the 1844 election, for example, there were two open seats on the Court. John Tyler made nine separate nominations of five different candidates, in one case sending up the same nominee three times. He sent up a pair of nominees in December, after the election. When those failed, he sent up another pair in February (presidential terms then ended in March). He had that power. Presidents have made Supreme Court nominations as late as literally the last day of their term. In Tyler’s case, the Whig-controlled Senate had, and used, its power to block multiple nominations by a man they had previously expelled from their party.
At the same time, in terms of raw power, a majority of senators has the power to seat any nominee they want, and block any nominee they want. Historically, that power of the majority was limited by the filibuster, but a majority can change that rule, and has. Norms long limited the filibuster’s use in judicial nominations in the first place, and violation of those norms led to its abolition. No Supreme Court nominee was filibustered by a minority of Senators until 1968. Senate Democrats attempted filibusters of William Rehnquist twice, and launched the first formal filibuster of a new appointment to the Court on partisan lines against Samuel Alito in 2005. Joe Biden participated prominently in the Rehnquist and Alito filibusters. Senate Democrats, led by Harry Reid and Chuck Schumer and joined by Biden, were the first to filibuster federal appellate nominees in 2003. After Republicans adopted the same tactic years later, Senate Democrats eliminated the filibuster for appellate nominees in 2013. Republicans extended that elimination to Supreme Court nominees in 2017.
So, today, Donald Trump has the raw power to make a Supreme Court nomination all the way to the end of his term. Senate Republicans have the raw power to confirm one at least until a new Senate is seated on January 3, and — so long as there are at least 50 Republican senators on that date — until Trump leaves office. Whether they should use this power, however, is a matter of norms, and of politics.
Norms are crucially important. If parties cannot trust that the other side will abide by established norms of conduct, politics devolves rapidly into a blood sport that quickly loses the capacity to resolve disagreements peaceably within the system. Those norms are derived from tradition and history. So let’s look at the history.
The Senate’s Precedents
In 2016, Barack Obama used his raw power to nominate Merrick Garland to replace Antonin Scalia in March of the last year of Obama’s term, with the Trump–Clinton election underway. The Republican majority in the Senate used its raw power to refuse to seat that nominee. Having reached that decision, the Republican majority did not even hold a hearing for an outcome that was predetermined. In looking back at that exercise of Senate power in 2017, I concluded that it was supported by historical precedent: