There has been a large volume of contradictory statements by Democrats and Republicans on nominating a successor to Supreme Court Justice Antonin Scalia.
President Barack Obama has claimed that he is duty-bound to nominate a judge for the highest judicial court in the land, and that his nominee is entitled to an up-and down vote. Conversely, several Republicans have been arguing that tradition dictates that a presidential nomination and Senate confirmation for a Supreme Court nominee do not take place in an election year.
As it happens, none of these claims hold water.
Election year Supreme Court vacancies have been filled by Senate-approved nominees in all six occurrences since 1900. The President certainly has the right to put forward a Supreme Court nominee in his final year, but he has no obligation to do so. And the Senate is not duty-bound to confirm, or even vote upon, his nominee, election year or not.
President Obama’s push to obtain a vote on his eventual nominee also puts him at odds with a Democratic tradition of thwarting Republican judicial nominees.
In asserting that Republicans need to vote on his eventual nominee, President Obama has been compelled to publicly “regret” via his spokesman his own efforts, as senator from Illinois, to filibuster Supreme Court Justice Samuel A. Alito Jr.’s nomination in 2005.
Similarly, Vice President Joe Biden must be regretting his public assertion in the 1992 election year (which can be seen here) that the then-Democratic-controlled Senate should refuse consideration, let alone a vote, on a hypothetical George H.W. Bush Supreme Court nominee before that year’s presidential elections. The fact that Mr. Biden was then Senate Judiciary Committee Chairman makes it all the more difficult for Democrats to shrug off.
So what is the history regarding Supreme Court nominees?
A study by the Congressional Research Office shows that, out of 160 Supreme Court nominees since 1789, 25 were never voted on by the Senate, while a further 11 were rejected on a vote. Accordingly, the Senate could do either of these things in the event that President Obama puts forward a nominee, as he is determined to do. And if he does so, the Republican-controlled Senate is unlikely to approve his nominee, for several reasons.
First, as the Congressional Research Office study observes, the importance and life-tenure of Supreme Court justices have ensured that the Senate is “less deferential to the President in his choice of Supreme Court Justices than in his appointment of persons to high executive branch positions.” Given that the Democratic-controlled Senate denied a hearing to 32 George W. Bush judicial nominees, why would anyone expect a Republican-controlled Congress to be any more deferential to President Obama’s next Supreme Court nominee?
Second, despite a time-honored conservative tradition of approving judges with requisite judicial experience, irrespective of their judicial philosophy, Republican senators are now decreasingly likely to do honor this tradition, if only because Democrats long ago relinquished any such pretense of bipartisanship in these matters. As the history shows, for Republicans to do this would amount to loyalty to a status quo that has not existed for some time.
In 1986, Scalia became the last first-choice nominee of a Republican president to be unanimously confirmed by the Senate. However, the same year, Ronald Reagan’s nominee for Chief Justice, William Rehnquist, was confirmed by the Senate by a less-than-acclamatory 65-33 votes. The following year, the Senate actually rejected Reagan’s nominee, Robert Bork, by a vote of 58-42. (It eventually confirmed Reagan’s third choice, Anthony Kennedy, by a unanimous vote). George H.W. Bush’s nominee in 1990, David Souter, received a high, but not unanimous vote (90-9), while Clarence Thomas in 1991 was confirmed by a slender majority of merely 52-48. Chief Justice John G. Roberts, nominated in 2005 by George W. Bush, was confirmed 78-22 by the Senate; and Samuel Alito, nominated by Bush in 2006, was confirmed by a much smaller 58-42 vote.
Republican senators have been moving in the same direction as their Democratic colleagues. From the Senate having confirmed Bill Clinton nominee Ruth Bader Ginsburg in 1993 by a 96-3 vote, it subsequently confirmed Clinton nominee Stephen Breyer in 1994 by the large but reduced majority of 87-9, Obama nominee Sonia Sotomayor in 2009 by the significantly smaller majority of 68-31, and Obama nominee Elena Kagan in 2010 by a still smaller 63-37 vote majority.
Indeed, since 1945, eight of the ten largest number of negative votes from Supreme Court nominees have all been cast against those of Republican presidents. The two exceptions are for Obama nominees Sotomayor and Kagan. Thus, the increasingly partisan pattern in such votes is obvious.
Third, the Supreme Court’s composition, previously finely balanced with four liberal and conservative justices each, with Anthony Kennedy holding a swing vote, is now in question as a result of Scalia’s passing. President Obama is likely to nominate another leftist judge who, if confirmed, would tilt the balance, perhaps for decades, against a conservative Supreme Court jurisprudence.
Even if, contrary to expectation and experience, President Obama nominates and the Senate confirms a more centrist jurist, that balance will not have been restored. And should the 82-year-old Ruth Bader Ginsburg, who has endured colon cancer, pancreatic cancer, and heart surgery, retire in coming months, President Obama is likely to make still a further nomination to the Supreme Court bench.
Thus, for Senate Republicans to confirm President Obama’s nominee would mean yielding judicial-activism triumphs over a broad front. One cannot discount the current Republican penchant for caving in to the President but, given the stakes involved, Senate Republicans are unlikely to let the President have his way.