Law & the Courts

The Garland Precedent Should Not Stop Gorsuch

Neil Gorsuch arrives for his Senate Judiciary Committee confirmation hearing on Capitol Hill (Reuters: Jim Bourg)
Election-year Supreme Court nominations are always governed by partisan concerns.

Neil Gorsuch is a careful judge, a lively writer, and a brilliant legal scholar. He’s received the highest possible rating from the left-leaning American Bar Association and the support of a number of liberals who have worked with him over the years. There’s nothing bad you can say about Gorsuch as a Supreme Court nominee.

Nothing, that is, except that Gorsuch is (1) a conservative who (2) was nominated by Donald Trump to (3) fill the same seat as Merrick Garland, the Obama nominee to whom Senate Republicans refused to give a vote, or even a hearing. Arch-partisan Democrats regard the seat vacated by the death of Justice Antonin Scalia as stolen, and Trump’s election as illegitimate, and they think these are reasons enough to vote against any Trump nominee to replace Scalia. As a result, the Gorsuch nomination will largely be a proxy fight over the legitimacy of the Senate’s rejection of the Garland nomination.

The Supreme Court confirmation process has been badly broken over the past three decades, and both parties have had a role in that. But the Garland nomination was a rare event in the modern Senate, because he was nominated in a presidential-election year by a president whose party did not control the Senate. Only once in U.S. history (in 1888) has the Senate acted before Election Day to confirm a justice who was nominated in the last year of a presidential term by a president of the opposing party. Three others (in 1845, 1880, and 1957) were confirmed only after the election:

‐In February 1845, outgoing president John Tyler (elected as a Whig but by then a man without a party) had nominations pending for two open seats. The Democrats had won control of both the presidency and the Senate in the 1844 elections. The lame-duck Whig Senate confirmed one of Tyler’s two nominees (Samuel Nelson, a Democrat, Tyler’s sixth nomination for that seat in 13 months), and left the other seat open for the incoming president after rejecting three efforts by Tyler to fill it.

‐In December 1880, a vacancy opened after Election Day. Republicans had won the presidential election as well as enough Senate seats to deadlock the Senate. The lame-duck Democratic Senate confirmed William Woods, a Republican nominated by outgoing Republican president Rutherford B. Hayes, but when a second vacancy opened in January, they left that seat open for the incoming president (James Garfield, another Republican).

‐In October 1956, Republican president Dwight Eisenhower made a recess appointment of William Brennan, a liberal Democrat. Eisenhower went on to win a landslide reelection, and in January, the Democratic Senate confirmed Brennan.

By contrast, the Scalia vacancy was the seventh time that the Senate has held a Supreme Court vacancy open rather than confirm an election-year nominee. Besides Obama, and the Tyler and Hayes cases mentioned above, this happened to John Quincy Adams, Millard Fillmore, James Buchanan, and Lyndon Johnson. In all these cases but Hayes’s, the failure to confirm meant that a president of a different party would make the nomination; in all but LBJ’s and Tyler’s, the incoming president would be from the same party that controlled the outgoing Senate. The Republican Congress went even further when Andrew Johnson was president: It eliminated Supreme Court seats as they became vacant, then restored them to be filled by the next Republican president. Johnson had made one nomination to a vacant seat, but the new law nullified it.

By contrast, nine election-year nominees and five post–Election Day nominees have been confirmed by the Senate when its majority was of the same party as the president. Only one president, Lyndon Johnson, has had a nominee rejected in this situation. In other words, as you’d expect, election-year nominations to the Court have usually been resolved on sharply partisan lines. So the Senate’s refusal to act on Garland is well within historical norms, and any Democratic effort to obstruct Gorsuch as payback would break new ground and possibly trigger the end of the judicial filibuster in its entirety.

A Historical Scorecard

The Supreme Court confirmation process is a subject of continuing controversy because it has historically been governed mainly by precedents and norms of behavior, not by rules. The Constitution establishes only two rules: The president “shall nominate” justices, “and by and with the Advice and Consent of the Senate, shall appoint” them. A third rule is established by the Senate itself: The Senate can’t proceed to vote on a nomination until debate has ended. The relevant rule has been changed four times, each time by a Democratic majority. In 1917, cloture was introduced for legislative debates, allowing a two-thirds vote to end debate (before then, there was no mechanism to stop even a single senator from filibustering indefinitely). In 1949, the cloture rule was extended from legislative debates to nominations. In 1975, the majority needed for cloture was dropped from two-thirds to three-fifths. And in 2013, the filibuster was abolished for all judicial and executive nomination votes except for Supreme Court justices. Yet while Senate minorities have zealously guarded their power to filibuster Supreme Court nominees, that power has been used to stop a nomination only once, in 1968. Every other time a nomination has been tabled or defeated, it has been done by the action of the majority party and/or a voting majority of senators.

Consider the varying methods by which nominations have failed to end in confirmation after being transmitted to the Senate (failed nominees in purple on this table were for seats that were eventually filled by a president from a different party):

The procedural devices vary here, and the details of some Senate floor actions are lost to history (I use “NR” where vote totals on Senate motions were not recorded and “NA” where no vote was taken, but I list Garland as being opposed 54–46 because no senator in either party publicly broke ranks on confirming him). Of the 35 failed nominations (including the repeat nominations by John Tyler), twelve received an up-or-down confirmation vote, six were withdrawn without a vote being taken, 13 were defeated by some other Senate action requiring a vote, and four (including Garland) were allowed to expire.

Senate norms for confirming Supreme Court justices have changed over time, but there’s never been a norm in favor of approving a nomination like Garland’s. To see how norms have developed in this area, let’s review the history of all Supreme Court nominations sent to the Senate*, broken down by time period.

1789–1823: Unity

As was true of many aspects of American politics, the degree of partisanship in Supreme Court nominations varied widely in the Republic’s early days. Below is a list of all the nominees from 1789 to 1823; the time from the vacancy, nomination, and confirmation or rejection to the next presidential election; the party of the president, the nominee, and the Senate majority; the percentage of votes cast (where available) against each nominee; and the ultimate disposition of the nomination. Orange refers to nominations made the year before the end of a presidential term, green to ones made in the final year, and purple to lame-duck nominations.

Congress’s sessions tended to be fairly brief in the early years, which explains why there were so many recess appointments in this period.

The next table provides a more granular look at the dates during the year when each nomination occurred. “Since Nom” is the time (in days) from nomination to resolution (confirmation or rejection/withdrawal), and “Since Vac” is the time to those points from the original vacancy. In considering lame-duck nominations, bear in mind that before the 20th Amendment was enacted in 1933, elections for a new Congress (and, when applicable, a president) were held in the fall of even-numbered years, and then in December the “lame duck” Congress would reassemble for a final session ending on March 4. The term of the new Congress (and, when applicable, the new president) began on March 4, though Congress usually did not assemble (except for a brief Senate session to confirm presidential appointees) until December.

There were no partisan confrontations over the Court in this period, partly due to the Founding generation’s uneasy relationship with open partisanship and partly because the Senate was always under the control of the same party or faction as the president. The First Congress was sufficiently idealistic about nonpartisanship to create a Supreme Court with an even number of justices (six; Washington nominated seven justices in 1789–90 because one of them declined to serve after being confirmed). The Democrats would add a seventh justice to the roster in the seventh year of Jefferson’s term. Of the 22 nominees who were voted on by the Senate between 1789 and 1823, 19 were confirmed unanimously or by voice vote, and one (an election-year nominee in 1796) was confirmed 21–1.** That said, the Senate did reject one of Washington’s nominees, a recess appointment to be chief justice (over his opposition to Washington’s own foreign policy), and one of James Madison’s (mainly over his enforcement of an unpopular embargo).

Four nominees were confirmed in the last year of a presidential term, in each case by a Senate dominated by the president’s own party (two at the end of Washington’s second term, one for John Adams, one for Jefferson at the end of his first term). And one of those was both highly controversial and highly consequential; the lame-duck Federalist-controlled Senate, by voice vote, confirmed John Marshall to be chief justice in January 1801, after both Adams and the Senate majority had been voted out of office. Marshall would go on to rule, indirectly, on the propriety of Adams’s “midnight judges” in Marbury v. Madison, and would remain on the Court for three and a half decades, long outliving the Federalist party. Marshall’s career illustrated to the political branches the power of Supreme Court nominations.

1826–1841: Spoils

The nation’s second two-party system emerged during John Quincy Adams’s presidency, as parties coalesced around Adams (later called the Whigs) and Andrew Jackson (later called the Democrats).*** The story of the period from 1826 to 1841 was the Jacksonian faction’s partisan struggle to take control of the Court.

Adams had been elected by the House of Representatives after no candidate won a majority of the electoral votes in 1824, and his opponents charged that he had gained the presidency through a “corrupt bargain” with Henry Clay. While the Jacksonians were bent on delegitimizing Adams, he still got his first Supreme Court nominee, Robert Trimble, confirmed by a Jacksonian Senate in 1826. However, after Adams lost the 1828 election to Jackson, his lame-duck nomination of Robert Crittenden in December 1828 (to replace Trimble, who had died suddenly in August) was tabled by the Senate. The Jacksonians had no intention of allowing another Adams to appoint another midnight justice. Jackson nominated Trimble’s replacement two days into his term, and he was confirmed the next day.

Jackson ran into his own Senate roadblock when he sent two nominees to the Whig-controlled Senate in January 1835, and one of them (Roger Taney) was — like Crittenden — tabled by the Senate without a formal up-or-down vote on the nomination. But the Democrats had won back the Senate in the 1834 elections, so when John Marshall died the following summer, Jackson filled the original vacancy with another nominee and got Taney confirmed to be chief justice.

The Jacksonians weren’t done stocking the Court: On Jackson’s last day in office, they passed the Eighth and Ninth Circuits Act, expanding the Court from seven justices to nine, and Jackson nominated two new justices, who were confirmed by the incoming Senate (which remained in Democratic hands, as did the presidency) five days later. One of the nominees declined, and his successor was selected by Jackson’s successor, Martin Van Buren. Van Buren, in turn, had the help of a Democrat-controlled Senate in confirming his own lame-duck midnight justice, Peter Daniel, in February 1841 after losing his attempt at reelection in 1840.

1844–1864: The Man without a Party

No sooner had the Jacksonians established the principle that control of the Supreme Court belonged to the parties than two vacancies fell into the hands of a president who had no base of support in any party.

John Tyler, the first vice president to become president, was a recent convert from the Democrats to the Whigs. He was expelled by the Whig party (controlled by Henry Clay, who had presidential ambitions) not long after he became president, leaving him with no party base in Congress. Two Supreme Court vacancies opened near the end of his single term, one in December 1843, the other in April 1844. After a combined eight nominations and renominations of four candidates over 13 months, he was finally able to fill the first vacancy by nominating a Democrat after James K. Polk and his fellow Jacksonian Democrats won the 1844 elections. Tyler failed twice on the other vacancy, so it was held open for President Polk (whose first choice was also rejected).

A similar fate to Tyler’s befell Millard Fillmore, another “accidental” Whig president, who had three nominees shot down by the Democrat-controlled Senate for a vacancy that opened in July 1852. That vacancy was held open for the next president, Democrat Franklin Pierce, who promptly filled it. Another Democratic appointment followed in 1857, when the sole Whig-appointed justice, Benjamin Curtis, resigned in protest over Chief Justice Taney’s opinion in Dred Scott v. Sandford. By this point the Whig party was a thing of the past.

James Buchanan had a second vacancy open in May of the election year of 1860, and unwisely waited until February to fill it. By that time the Senate had tipped to the Republicans after Southern Democrats withdrew to join the Confederacy. Republican senators, by a 26–25 vote, held the seat open to be filled by Abraham Lincoln, the first Republican president. President Lincoln would go on, with the help of a Republican Senate, to fill five Supreme Court seats, including one that had been newly created.

1865–1895: Power Struggle

In the aftermath of the Civil War, the pro-Reconstruction “Radical Republicans” took the most extreme step ever taken by the Senate to prevent a president from nominating Supreme Court justices. When Lincoln was assassinated in April 1865, the Court consisted of ten justices, five of them Lincoln appointees. Lincoln’s successor, Andrew Johnson, was a Union loyalist but still a Southern Democrat at heart, weak on Reconstruction and mistrusted by the Radical Republicans who ran Congress. So when Justice John Catron died in May 1865 and Justice James Wayne died in July 1867 — both Andrew Jackson appointees — the Senate refused to consider any Johnson appointees to the Court. Henry Stanbery, nominated in April 1866 to replace Catron, was never voted on by the Senate.

Instead, Senate Republicans passed the Judicial Circuits Act of 1866, which Johnson signed into law in July. Under its terms, the Court would be reduced by attrition from ten justices to seven. The act wasn’t motivated entirely by obstruction — Chief Justice Chase supported it as a way to raise the justices’ pay — but after Republican Ulysses S. Grant was elected in 1868, Congress the following April passed the Circuit Judges Act, which restored the Court to nine justices (where it has stayed ever since) and gave President Grant an immediate appointment.

Intraparty battles provided much of the remaining drama between 1868 and 1896. Senate Republicans rejected three of President Grant’s nominees and Senate Democrats rejected two of Grover Cleveland’s. In terms of bipartisan norms, however, there were five interesting nominations in this period:

‐William Woods was nominated by lame-duck Republican Rutherford B. Hayes in December 1880 and confirmed by the outgoing Democrat-controlled Senate. The Republicans had just won the 1880 presidential election behind James Garfield, and had gained enough Senate seats that the new Senate would be evenly deadlocked. Woods’s easy 39–8 confirmation suggests that the Democrats felt he was the best deal they could get, since Woods lived in Alabama and had been a Democrat before serving the Union in the Civil War. If they had rejected him, Garfield might have nominated someone less acceptable.

‐A month later, Hayes sent the new Senate another nominee, Stanley Matthews. The Senate ignored Hayes this time, but Matthews was renominated by Garfield and confirmed by a one-vote margin, 24–23, the only justice to be confirmed by just one vote. The Matthews nomination fight would mark the first appearance of what is now a fixture, outside interest groups lobbying against the nominee.

‐In December 1887, seven months after a vacancy opened on the Court, Cleveland (the first Democratic president since before the war) nominated Lucius Quintus Cincinnatus Lamar, a respected former senator but also a former Confederate official. Lamar faced stiff opposition in the Republican-controlled Senate but was confirmed in January, 32–28.

‐In April 1888, seven months before losing his reelection bid, Cleveland made another nomination, of Melville Fuller to be chief justice. Fuller was the only historical precedent for the confirmation of a nominee in Garland’s position: an outgoing Democrat nominated him in the teeth of a hostile Republican Senate. He was a partisan Democrat, having managed Stephen Douglas’s presidential campaign against Lincoln in 1860. But he also arrived at a point of unique, non-ideological crisis for the Court, when it was choked with a multi-year backlog in resolving the cases on its docket. Fuller, as a veteran Supreme Court advocate was well-positioned to play Mr. Fixit. (In office, Fuller would be instrumental in getting Congress to expand the federal appeals courts to relieve this burden and create the modern Supreme Court’s power over what cases it takes.) Despite fierce criticism from members of the 38–37 Republican majority (along with one Republican-leaning independent), Fuller was confirmed, 41–20, with nine Republican votes. He went on to lead the Court through a period of rising professionalism but also its notorious decisions in Plessy v. Ferguson and Lochner v. New York.

‐In February 1893, lame-duck Republican president Benjamin Harrison — having been ousted by Cleveland, and only a few weeks from leaving office — nominated Howell Jackson, who was confirmed by the lame-duck Republican Senate by voice vote. Jackson, however, was a Democrat — he had served in the Senate as a Democrat, had fought for the Confederacy, and had been appointed to the Sixth Circuit by Cleveland. The Jackson nomination was thus a concession of Republican power in the lame-duck session, not an assertion. It would not be the last time a weakened president reached for the bipartisan olive branch.

In short, durable norms of behavior of any kind are hard to identify in this period, from either the White House or the Senate. Confirmation fights were hotly contested, some nominees never got a vote, and presidents who were dealing from a position of weakness tended to choose nominees who would be acceptable to the opposing party.

1897–1932: De-escalating the Court

The Senate’s general lack of deference to Supreme Court nominees in the late 19th century was consistent with the weak presidencies of that era, as well as the view of justices as political actors — hence the tendency to appoint senators and Cabinet members to the Court (not until 1941 would we have a chief justice who had not previously been an elected official).

After 1896, things changed. Only one of 22 Supreme Court nominations was rejected between 1897 and 1932. With the arrival of more intellectual justices like Holmes and Brandeis, the Court gradually acquired more prestige and less obvious partisanship in this period, during which (not coincidentally) the Court rarely clashed with the political branches of the federal government. Of perhaps equal importance, after the Fuller nomination in 1888, there would not be another Supreme Court nomination until the 1950s by a president whose party did not also control the Senate.

Sixteen of the twenty-two nominations in this period were made in the ideal conditions: the first two years of a presidential term, with a Senate controlled by the president’s party. Fifteen of the sixteen were confirmed with nearly no opposition; the sole exception, Hoover nominee John J. Parker in 1930, was narrowly defeated with significant opposition from Republican senators (due to racist remarks and anti-labor judicial decisions). The two nominations in the third year of a presidency (one of them in January, the other in February) were likewise easily confirmed.

But even in an era of few confirmation fights, there was still some resistance to election-year nominees. Two of the four (Mahlon Pitney and Louis Brandeis in 1912 and 1916, respectively) garnered significant votes in opposition, and in 1932, a weakened Herbert Hoover abandoned his party to nominate Benjamin Cardozo, a New York Democrat of impeccable liberal credentials, in the midst of a presidential campaign against the Democratic governor of New York, Franklin D. Roosevelt. As with Howell Jackson and Samuel Nelson, Cardozo’s election-year confirmation represented a presidential concession.

1937–1967: Liberal Hegemony

President Roosevelt’s “Court-packing plan” of 1937 was unsuccessful, in part, because the idea of the Court as a prestigious, independent, professional institution had firmly established itself in the American mind. That prestige may have helped create — for a time — a more deferential confirmation system, in which both presidents and senators pretended to higher ideals than simple partisan control. And at times they meant it: presidents Taft (twice), Harding, and Truman all appointed justices of the opposite party when they didn’t really need to. The same was true of FDR’s decision to elevate Republican Harlan Fiske Stone to chief justice in June 1941, although Roosevelt, like Lincoln with his appointment of Democratic justice Stephen Field, probably had his eye on wartime unity.

Every nominee to the Supreme Court in this period was ultimately confirmed. Among them was Earl Warren, the only Supreme Court justice nominated by a Republican president and confirmed by a Republican Senate between Cardozo in 1932 and Sandra Day O’Connor in 1981.

There were two election-year nominations in this period. One, Frank Murphy in 1940, was a traditional spoils-system nomination, as Senate Democrats had the votes (with a 69–23 majority) to ram through a liberal FDR nominee. The other was Brennan, a recess appointment made by Eisenhower three weeks before the 1956 election (as a Catholic New Jersey Democrat, he represented three constituencies that Ike was courting for the election). Lyndon Johnson’s Democratic majority supported Brennan unanimously, and he would go on to be the most consequential liberal justice in the Court’s history. Eisenhower is the only president since Theodore Roosevelt to make recess appointments to the Court; he also used that route to seat Warren and Potter Stewart.

1968–2017: Consensus Frays

Brown v. Board of Education marked the Court’s shift from the economic-policy fights of the New Deal era and the foreign-policy battles of the 1940s to the more incendiary area of social issues. That trend would escalate dramatically in the 1960s, as the Court moved into areas like school prayer, contraception, and pornography. While the Court in prior eras had been downstream of partisan politics, reflecting the political actors who appointed and confirmed its members, the Court since the Warren era has often been a cause of voters’ partisan alignments. This change has strained the system of norms governing the confirmation process.

The successful filibuster of Abe Fortas’s election-year nomination for promotion to chief justice in 1968 was a watershed. Fortas’s elevation, and the corresponding nomination of LBJ’s Texas crony Homer Thornberry to fill Fortas’s old seat, was opposed by a bipartisan alliance of 24 Republicans and 19 mostly Southern Democrats in the Democrat-controlled Senate. Most of the objectors were opponents of the Warren Court’s liberalism, but they had other serious concerns: the ethical lapses that would ultimately force Fortas’s resignation from the Court; the cronyist coziness between LBJ, Fortas (who was accused of helping the Johnson administration draft legislation while on the Court), and Thornberry (who had taken over LBJ’s old House seat); and the apparent collusion between Warren and LBJ in arranging the timing of his retirement and his replacements.

The defeats of Fortas and Thornberry left the replacement of Warren in Nixon’s hands, and a second vacancy arose when Fortas resigned. But while Nixon got Warren Burger confirmed without incident to replace Warren, Senate Democrats voted down Nixon’s first two choices to replace Fortas, both conservative, before he settled on Harry Blackmun, a moderate who moved steadily leftward during his time on the Court.

No nominee since Fortas and Thornberry has been formally filibustered, although some Democrats made attempts with William Rehnquist’s elevation to chief justice and later with Samuel Alito. Obama’s nomination of Merrick Garland, by contrast, was simply ignored by the Senate, without even a hearing.

After Scalia, no conservative has been confirmed with anything like unanimous support; after Stephen Breyer, no liberal has, either. The open entry of ideology into the confirmation process was heralded by Biden in the fight over Rehnquist’s nomination for chief justice and deployed ruthlessly in the following year’s fight against Robert Bork, which, like the 1971 fight against Nixon’s nominees, ultimately resulted in the nomination of a more socially liberal justice (Anthony Kennedy).

The Broken System

The Senate filibuster against legislation exists for good and valid reasons as a sobriety checkpoint for federal legislation. The 2013 abolition of the filibuster for executive nominations is likewise a welcome development, as executive appointees are merely an extension of the president and should not be defeated over mere differences with the executive branch.

But Supreme Court nominations exist in a gray area, and the importance and permanence of Supreme Court decisions drives each side to disregard norms and act to the greatest extent of its power. Lacking, for now, a workable mechanism to compel both sides to play by the same rules, there is only politics and tradition.

That tradition shows that election-year nominations really are different. Senate Republicans, in stopping the Garland nomination, may have used different tools than past Senate majorities, but they acted in accordance with the dominant Senate tradition in election-year nominations since 1828, and did not “steal” a Supreme Court seat. If Democrats want to break the process further by filibustering Gorsuch, they should be denied the fig leaf of claiming that the Garland precedent supports such a step.

———————-

* My tally of nominations does not count a couple of nominations (Pierce Butler, William Hornblower) that were sent twice by the same president to the same Senate without any intervening action. It also doesn’t count nominees who publicly declined their nominations before they were submitted (one of whom, John Quincy Adams, later became president). I also ignored John Roberts’ nomination to succeed Justice O’Connor, which was withdrawn when Chief Justice Rehnquist died and Roberts was renominated to be chief justice instead.

** One of Washington’s nominees, William Paterson, was withdrawn and resubmitted because he had been a sitting senator when the Court was created, and thus needed under the Constitution to wait for an intervening election. I’ve counted him as a failure and resubmitted nominee.

*** For simplicity, I classify John Quincy Adams and his party as the Whigs and Jackson and his party going back to Jefferson as the Democrats, although in each case, the party labels were not used regularly until later.

Dan McLaughlin — Dan McLaughlin is an attorney practicing securities and commercial litigation in New York City, and a contributing columnist at National Review Online.

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