Edit Memo: Filling the Supreme Court Vacancy Caused by the Death of Justice Scalia: What Should the Senate Do?

To: Interested Parties
From: Elliot Mincberg, Senior Fellow, People For the American Way
Date: February 16, 2016
Re: Filling the Supreme Court Vacancy Caused by the Death of Justice Scalia: What Should the Senate Do?

Despite being elected twice by the American people, the second time by a large margin, the President is regularly attacked by Congress, with both houses controlled by the opposition party. Although the President remains popular in his own party and with his base, he is considered a polarizing figure among presidential candidates already seeking to succeed him and in Congress. As the New York Times puts it less than a year before the election, “From large budget deficits to tensions in the Persian Gulf, the President’s positions are under severe attack.”  In the Senate, he has had serious problems in obtaining confirmation for his federal judicial nominees.  And now, with less than a year to go before the election, the President vows to “move promptly” to submit a nomination to fill a Supreme Court vacancy. What does the Senate do?

This is precisely the situation that was before the Senate less than a year before the 1988 presidential election, down to the quote from the New York Times on November 7, 1987. And when President Ronald Reagan nominated Judge Anthony Kennedy to fill a Supreme Court vacancy on November 11, 1987, the Democratic-controlled Senate did not “delay, delay, delay”, in Donald Trump’s words at the last Republican debate. Instead, it confirmed Justice Kennedy in less than three months, on February 3, 1988, by a unanimous vote.

This example shows what is so wrong about current Republican claims that the Supreme Court vacancy caused by the recent death of Justice Antonin Scalia should not be filled until sometime in 2017, after the next election. The crucial importance of the Supreme Court, the overall historical record, and the language of our Constitution all lead to the same conclusion—the current Court vacancy should be filled as soon as possible this year.

The Importance of a Fully Functional Supreme Court

Throughout our nation’s history, and never more than today, the controversies resolved by the Supreme Court have been and are crucial to all aspects of Americans’ lives. The constitutionality of slavery and  of segregated  schools for racial minorities, whether a President can unilaterally seize steel mills and other private property during  war,  the meaning of Congressional laws banning race and other discrimination, a woman’s right to choose, the authority of the EPA to regulate greenhouse gases, whether states can provide vouchers to pay for religious private schools, the constitutionality of laws to regulate campaign finance and help keep big money out of politics, whether there is an individual  right to possess guns under the Constitution, whether states can prohibit marriage by LGBT couples --- all these and many more critical issues have been ruled on by the Supreme Court. Particularly in recent years, many of these significant issues have been decided by narrow 5-4 majorities, so that having a full complement of nine justices is very important.

Take the current 2015-16 Court term, for example. Cases before the Court include such controversial questions as the constitutionality of state efforts to severely restrict abortion providers and to allow unions to effectively organize. The Court is also set to resolve crucial questions on voting rights, contraception, religious liberty, affirmative action, immigration policy, and more. On most of these, the Court is likely to be closely divided. A Supreme Court that is short one justice could very well be unable to issue a majority ruling in most or all of these cases. Although a tie vote would affirm by default the specific lower court rulings under review,  the result would be that many of these important issues would be left in limbo. Filling the current vacancy is crucial to ensure that the Supreme Court can perform its significant role in our democracy.

The Lessons of History

Because of the importance of a fully functioning Supreme Court, the President and the Senate have historically kept the length of vacancies on the Court to a minimum. Republicans now assert that the current Court vacancy should not be filled until after the next President and the next Senate take office in 2017, which means that the vacancy would last for more than a year. But for more than the last century, there has never been a Supreme Court vacancy that has been left open for over a year. In fact, there has never been a vacancy of longer than four months while the Court has been in session. In fact, the Republicans’ proposed obstruction would perpetuate a vacancy in not one but two consecutive terms of the Supreme Court -- another unprecedented action.

The Kennedy confirmation in 1988 was far from the only time that Supreme Court nominations have been confirmed, and even submitted to the Senate, during Presidential election years. In fact, two of our most renowned Justices, Louis Brandeis and Benjamin Cardozo, were nominated in January and February of presidential election years. Both were confirmed long before the election –Cardozo in February and Brandeis, despite significant controversy, in June. In fact, after a careful historical review, SCOTUSblog reported on Feb. 13 that the “historical record does not reveal any instances since at least 1900 of the president failing to nominate and/or the Senate failing to confirm a nominee in a presidential election year because of the impending election.” (emphasis added)

This conclusion is consistent with what happened in 1968, when Chief Justice Earl Warren resigned. President Johnson nominated Justice Fortas for the position and, even as late as the summer of 1968, the Senate Judiciary Committee approved the nomination and sent it to the full Senate. Although the nomination was then filibustered, the historical record is clear that this was because of specific concerns about Fortas’ finances and objections to the Warren Court, not the impending election. In fact, Warren’s resignation did not take effect until his successor was confirmed, which happened in 1969, so that no vacancy on the Court actually occurred.

Republican Claims vs. the Language of the Constitution

Nevertheless, within hours of Justice Antonin Scalia’s death on Saturday, Republican Senate Majority Leader and every Republican presidential candidate announced that they oppose even considering a nominee for the Court vacancy this year, no matter who President Obama selects. McConnell flatly asserted that the vacancy “should not be filled” until after the election.  Sen. Ted Cruz falsely claimed in the Republican debate that there had never been a Court vacancy filled during an election year. Republican Senate Judiciary chair Charles Grassley asserted that it is “standard practice” not to consider a Court nominee in an election year, clearly contradicting the history under both Republican and Democratic presidents and Senates, including the votes by him and Senator McConnell to confirm Justice Kennedy in an election year.

The extreme Republican obstructionist position would strike at the heart of our Constitution. Article II, Section 2 of the Constitution makes clear that the President “shall nominate, and with the Advice and Consent of the Senate, shall appoint” people to fill vacancies on the Supreme Court.  Despite their professed regard for the Constitution and for strict construction of its original text,  Republicans are effectively seeking to add an exception  to Article II for  when there is a year left in the term of a Democratic president.  No such exception exists, as Justice Scalia himself, our nation’s strongest advocate of the originalist view of the Constitution, would be the first to recognize.  The current Republican obstructionism violates their sworn duty to uphold the Constitution and flatly contradicts their alleged adherence to a strict and literal interpretation of it.

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