Politics & Policy

Two’s No Crowd

The Senate has rapidly confirmed two justices before.

Former chief justice William Rehnquist’s death has created an unexpected dual vacancy on the Supreme Court. Coincidentally, Chief Justice Rehnquist joined the Court when the last dual vacancy occurred.

While some argue that it’s not possible for the president and Senate to carry out their responsibilities regarding a Supreme Court nomination without creating an extended vacancy on the Court, a close look at the circumstances surrounding the last dual vacancy suggests otherwise.

Justice John Marshall Harlan II, an Eisenhower appointee and grandson of another Supreme Court justice (John Harlan Marshall, the lone dissenter in the 1896 Plessy v. Ferguson) case announced his retirement in September of 1971. Harlan had been interested in retiring for some time, but had delayed doing so out of deference to his colleague, Justice Hugo Black, an FDR appointee known for his advocacy of a “literal” reading of the U.S. Constitution.

It had been rumored that Justice Black was also considering retirement owing to ill health. As a consequence, throughout much of 1971 Justice Harlan waited to make his announcement. But his own health problems worked against his desire for deference. Unbeknownst to much of the public and even to some of his fellow justices, Justice Harlan was almost completely blind. In fact, he could no longer even read the legal briefs and case law necessary for preparing his opinions. Reluctantly he concluded he would retire before the start of the new session.

As circumstances would have it, Black had reached a similar decision and abruptly announced his own retirement on September 17. Upon learning of Black’s plan, Harlan waited a week and announced his retirement on September 23. Two days after Harlan’s announcement, Black died.

As John Dean revealed in his prize-winning account, The Rehnquist Choice, President Nixon would consider some 35 candidates for the vacancies, including Howard Baker, then the Republican senator from Tennessee, California appeals-court judge Mildred Lillie (who would have been the first woman on the Supreme Court), and even the sitting vice president, Spiro T. Agnew. He ultimately settled on two distinguished lawyers, Virginian Lewis Powell and Milwaukee-born William Rehnquist.

Justice Powell would serve on the Court until June 26, 1987, where he compiled a moderate record and cultivated a reputation as a swing vote with a penchant for compromise. Justice Rehnquist would serve as an associate justice until he was nominated and successfully confirmed in 1986 by President Reagan to become chief justice. As chief he would preside over the Court for 19 years, making him the fourth-longest-serving chief justice after Melville Weston Fuller, Roger B. Taney, and John Marshall.

But at the time, the unexpected death of Justice Black and the resignation of Justice Harlan in 1971 presented President Nixon and the Senate with a situation remarkably similar to that facing President Bush and congressional leaders today.

And if history is a guide, a workable solution will also be similar. You see, less than a month after these dual retirements, President Nixon had nominated both Rehnquist and Powell. And impressively, the Senate had held hearings and confirmation votes on both men within two months.

Without undue complaints about being hurried or being given limited time for preparation, Senate Republicans and Democrats acted on the president’s nominations. And after less than a week of hearings in November, the Senate Judiciary Committee would favorably report both nominees to the floor of the Senate. In just three days of debate, the Senate confirmed Powell by a vote of 89 to 1. And even after an extended debate over a last-minute memorandum that Rehnquist had authored as a Supreme Court clerk for Justice Jackson, he too was confirmed, 68 to 26, on December 10.

In 1971, Democrats and Republicans came together recognizing that they could both vigorously examine the nominees and maintain their responsibility to keep the Court operating at full strength. The dual vacancy of 1971 provides a useful roadmap for contemporaries revealing that an extended vacancy may not be necessary. Today’s Senate leaders should follow this model. In so doing, they will minimize the impact on the Court’s operations and independence as much as possible. After all this is the least that we should do to honor the man from Milwaukee, William Rehnquist, who as chief justice made the operation of the federal courts a model of efficiency and smoothness in operation.

Horace Cooper is a professor of constitutional law at George Mason University.


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