Politics & Policy

Brett Kavanaugh Should Get a Vote Before the Midterm Elections

Supreme Court nominee Judge Brett Kavanaugh at the White House, July 9, 2018. (Jim Bourg/Reuters)
History is on the Republican Senate’s side.

Should the Senate vote on Brett Kavanaugh before the November elections?

Justice Anthony Kennedy’s retirement from the Supreme Court has a lot of Democrats looking to even the score after Senate Republicans, led by Mitch McConnell, refused to seat Merrick Garland in 2016. Garland, President Obama’s nominee to replace Antonin Scalia, was flatly rejected: no hearing, no committee vote, no floor vote. After the election, President Trump got to name Scalia’s replacement, Neil Gorsuch. Didn’t Republicans argue that the voters should be heard first when it’s an election year? Shouldn’t Brett Kavanaugh, Trump’s nominee to replace Kennedy, be put off until after the November elections?

If history is any guide, the answer should be “No.” 2016 was a presidential election year, which decides who makes the nomination in the first place; 2018 is a midterm, with just a third of the Senate up for reelection. Unlike in 2016, the Senate is controlled by the same party as the president. History shows that when these two factors come together — a presidential election year, and divided government between the White House and Senate — presidents don’t get to fill open Supreme Court seats. Otherwise, they do, routinely. There is no reason why that would or should change now.

Presidential Election-Year Nominations

To summarize the historical research I’ve presented on this point previously, presidents have submitted nominees for 21 Supreme Court vacancies in a presidential election year or a lame-duck session since 1796 (in some cases, multiple nominees for the same vacancy). In four cases, a nominee was submitted only after the election.

Ten vacancies resulted in pre-election nominations when the Senate was controlled by the president’s party. Nine of the ten were filled before the election, most recently Frank Murphy’s nomination by Franklin D. Roosevelt in 1940. The lone exception was Homer Thornberry in 1968, who was blocked (along with the elevation of Abe Fortas to Chief Justice) by a bipartisan filibuster of 24 Republicans and 19 Democrats.

Two vacancies (in 1841 and 1893) were filled by lame-duck Senates of the president’s party after the election, in both cases by presidents (Van Buren and Benjamin Harrison) who had just lost the election. The Senate, in friendly hands, let them add a Justice on the way out:

Seven vacancies resulted in pre-election nominations when the Senate was controlled by the opposing party. Only one of seven was filled before the election: Melville Fuller, a conservative nominated to be Chief Justice by Grover Cleveland and confirmed by a Republican Senate in 1888, at a point when the Court’s backlog was a larger issue than any ideological division between the parties. One of those seven was also filled in a lame-duck session: John Tyler made eight efforts to fill two vacancies, but with a Democratic president and Senate incoming, the outgoing Whig Senate finally confirmed one new Tyler nominee (Samuel Nelson) for one of the two vacancies, leaving the other vacancy to incoming president Polk.

The other four were also left to be filled by the winner of the presidential election, including William Brennan, a recess appointment by Dwight Eisenhower; the Senate took no action, but confirmed Brennan after Eisenhower’s reelection. Two presidents submitted initial nominations after the election when the Senate was in opposing hands, and both were rejected — in one case, Republican Rutherford B. Hayes’s nomination of Stanley Matthews was rejected by a Democratic Senate, only to be resubmitted by the newly elected Republican president, James Garfield, and narrowly passed an evenly divided Senate:

Now, it’s true that many of these examples are from a long time ago, but that just underlines how unusual the Merrick Garland nomination was. All told, only three of these nominations were made after the Second World War, and all three (Garland, Thornberry, and Brennan) were left to be filled by the winner of the presidential election. Brennan was the first such nomination with the opposing party running the Senate since 1888, and Eisenhower reacted by choosing a known liberal Democrat — the equivalent of Obama nominating Gorsuch, not Garland — and still had to win the election before his choice was confirmed. By contrast, the five election-year nominees confirmed between 1912 and 1940 were all backed by the president’s party controlling the Senate. The last of those, Frank Murphy in 1940, was nominated when the Democrats had a massive 69-23 majority.

The procedures used for the Senate to reject nominees (including whether recorded floor votes or hearings were held) have varied over time, as I’ve detailed before. But the outcomes have been the same: Presidents get to fill election-year vacancies if their party controls the Senate, and not if they don’t. The Garland nomination was defeated for the simple reason that Republicans won control of the Senate in 2014, and a majority did not want to seat him.

Midterm Election-Year Nominations

By contrast, the record of midterm-year elections is one of nearly unbroken confirmations, no matter which party controlled the Senate. That includes two Democratic-appointed Justices of the current Supreme Court: Elena Kagan in 2010, and Stephen Breyer in 1994. It also includes Antonin Scalia in 1986. Both Breyer and Scalia were confirmed on the eve of midterms that saw the opposition party take over the Senate.

Modern midterm elections begin in 1914, after the passage of the 17th Amendment made senators popularly elected. Since then, there have been nominations for 14 vacancies in midterm election years before the election, plus one promotion of a sitting Justice (Rehnquist, in 1986) to Chief Justice. You could cut the number to 13 if you don’t count Harry Blackmun, who was Richard Nixon’s third choice for a vacancy left over from Nixon’s first year. In every case (including Blackmun), the president was able to fill the vacancy before the midterm election. Only one midterm-year nominee was rejected: Herbert Hoover’s nomination of John Parker in 1930. Parker drew significant opposition within Hoover’s own party and lost by a single vote, but Hoover’s replacement nomination of Owen Roberts was confirmed unanimously two weeks later.

The only nominee to be held over was John Marshall Harlan II, nominated by Eisenhower a week after the 1954 midterms, which saw the Democrats take over the Senate. Harlan — criticized by some senators for being too liberal — stalled in committee, but Eisenhower renominated him when the new Democratic Senate was seated, and he was confirmed.

Before the 17th Amendment, senators were elected by state legislatures, so there was no single midterm election date on the calendar. Still, if we look back before 1914, we see a similar pattern. There were nominations for 16 vacancies in midterm years between 1790 and 1910, and the president got to fill the vacancy before the end of the year in 15 of them (including two nominations made in December after the midterm election cycle was over). There were more initial nominations rejected in this period (five of them for three vacancies), plus two Justices confirmed who never took their seats. But only once did a president fail to get his choice.

That one example, Andrew Johnson’s nomination of Henry Stanbery in 1866, has much more in common with the Garland nomination than the Kavanaugh nomination. The Radical Republicans already controlled the Senate in 1866, so they didn’t need to wait for a midterm. And rather than simply delay the nomination for a new Senate, they actually abolished the open seat on the Court, reducing its membership so that Johnson — a Democrat then feuding with Congress over Reconstruction — could not nominate any Justices. As soon as a new Republican president (Ulysses S. Grant) was elected, Congress restored the Court to its current nine Justices, immediately giving Grant two vacancies to fill. The Stanbery precedent was about holding a nomination for a new president, not a new Senate.

 

What Republicans Said in 2016

Democrats are well aware of this history, which is why they have tried to change the subject by falsely claiming that Mitch McConnell and other Senate Republicans were talking in 2016 about all elections, not just presidential elections. But the tale of the tape makes very clear that this is not so. The Washington Post’s Aaron Blake rounds up the statements, in a scathing article titled “Democrats’ bogus argument about what the GOP said on election-year Supreme Court vacancies.” A sampling:

The GOP did argue in 2016 that a Supreme Court vacancy shouldn’t be filled until after voters had their say in the coming election, but their argument was about who gets to nominate the justice — not who gets to confirm him or her. It was clearly about presidential election years, not midterms.

Here’s Senate Judiciary Committee Chairman Charles E. Grassley (R-Iowa), immediately after Garland was nominated: “A majority of the Senate has decided to fulfill its constitutional role of advice and consent by withholding support for the nomination during a presidential election year. . . .”

Here’s what Senate Majority Leader Mitch McConnell (R-Ky.) said: “I believe the overwhelming view of the Republican Conference in the Senate is that…this vacancy should not be filled by this lame duck president.”

McConnell and other Republicans were not always perfectly careful in their statements; much of the liberal criticism of McConnell centers on statements where he claimed (against the weight of the history cited above) that the Senate does not confirm presidential-year nominees no matter which party is in charge. But that just means he overstated his case in the Garland fight. (And Chuck Schumer, of course, did the same in multiple ways in the Gorsuch fight.) If you’re looking at what Senate Republicans actually did with the Garland nomination or what they should do with the Kavanaugh nomination, however, history is on their side.

NOW WATCH: ‘5 Things You Need To Know About Judge Brett Kavanaugh’

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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