Choosing not to fill a vacancy would be a historically unprecedented act of unilateral disarmament.
NRPLUS MEMBER ARTICLE I f a Supreme Court vacancy opens up between now and the end of the year, Republicans should fill it. Given the vital importance of the Court to rank-and-file Republican voters and grassroots activists, particularly in the five-decade-long quest to overturn Roe v. Wade, it would be political suicide for Republicans to refrain from filling a vacancy unless some law or important traditional norm was against them. There is no such law and no such norm; those are all on their side. Choosing not to fill a vacancy would be a historically unprecedented act of unilateral disarmament. It has never happened once in all of American history. There is no chance that the Democrats, in the same position, would ever reciprocate, as their own history illustrates.
For now, all this remains hypothetical. Neither Ruth Bader Ginsburg nor any of her colleagues intend to go anywhere. But with the 87-year-old Ginsburg fighting a recurrence of cancer and repeatedly in and out of hospitals, we are starting to see the Washington press corps and senators openly discussing what would happen if she dies or is unable to continue serving on the Court. Democrats are issuing threats, and some Republicans are already balking.
History supports Republicans filling the seat. Doing so would not be in any way inconsistent with Senate Republicans’ holding open the seat vacated by Justice Antonin Scalia in 2016. The reason is simple, and was explained by Mitch McConnell at the time. Historically, throughout American history, when their party controls the Senate, presidents get to fill Supreme Court vacancies at any time — even in a presidential election year, even in a lame-duck session after the election, even after defeat. Historically, when the opposite party controls the Senate, the Senate gets to block Supreme Court nominees sent up in a presidential election year, and hold the seat open for the winner. Both of those precedents are settled by experience as old as the republic. Republicans should not create a brand-new precedent to deviate from them.
Power, Norms, and Election-Year Nominations
There are two types of rules in Washington: laws that allocate power, and norms that reflect how power has traditionally, historically been used. Laws that allocate power are paramount, and particularly dangerous to violate, but there is no such law at issue here. A president can always make a nomination for a Supreme Court vacancy, no matter how late in his term or how many times he has been turned down; the only thing in his way is the Senate.
Twenty-nine times in American history there has been an open Supreme Court vacancy in a presidential election year, or in a lame-duck session before the next presidential inauguration. (This counts vacancies created by new seats on the Court, but not vacancies for which there was a nomination already pending when the year began, such as happened in 1835–36 and 1987–88.) The president made a nomination in all twenty-nine cases. George Washington did it three times. John Adams did it. Thomas Jefferson did it. Abraham Lincoln did it. Ulysses S. Grant did it. Franklin D. Roosevelt did it. Dwight Eisenhower did it. Barack Obama, of course, did it. Twenty-two of the 44 men to hold the office faced this situation, and all twenty-two made the decision to send up a nomination, whether or not they had the votes in the Senate.
During the 1844 election, for example, there were two open seats on the Court. John Tyler made nine separate nominations of five different candidates, in one case sending up the same nominee three times. He sent up a pair of nominees in December, after the election. When those failed, he sent up another pair in February (presidential terms then ended in March). He had that power. Presidents have made Supreme Court nominations as late as literally the last day of their term. In Tyler’s case, the Whig-controlled Senate had, and used, its power to block multiple nominations by a man they had previously expelled from their party.
At the same time, in terms of raw power, a majority of senators has the power to seat any nominee they want, and block any nominee they want. Historically, that power of the majority was limited by the filibuster, but a majority can change that rule, and has. Norms long limited the filibuster’s use in judicial nominations in the first place, and violation of those norms led to its abolition. No Supreme Court nominee was filibustered by a minority of Senators until 1968. Senate Democrats attempted filibusters of William Rehnquist twice, and launched the first formal filibuster of a new appointment to the Court on partisan lines against Samuel Alito in 2005. Joe Biden participated prominently in the Rehnquist and Alito filibusters. Senate Democrats, led by Harry Reid and Chuck Schumer and joined by Biden, were the first to filibuster federal appellate nominees in 2003. After Republicans adopted the same tactic years later, Senate Democrats eliminated the filibuster for appellate nominees in 2013. Republicans extended that elimination to Supreme Court nominees in 2017.
So, today, Donald Trump has the raw power to make a Supreme Court nomination all the way to the end of his term. Senate Republicans have the raw power to confirm one at least until a new Senate is seated on January 3, and — so long as there are at least 50 Republican senators on that date — until Trump leaves office. Whether they should use this power, however, is a matter of norms, and of politics.
Norms are crucially important. If parties cannot trust that the other side will abide by established norms of conduct, politics devolves rapidly into a blood sport that quickly loses the capacity to resolve disagreements peaceably within the system. Those norms are derived from tradition and history. So let’s look at the history.
The Senate’s Precedents
In 2016, Barack Obama used his raw power to nominate Merrick Garland to replace Antonin Scalia in March of the last year of Obama’s term, with the Trump–Clinton election underway. The Republican majority in the Senate used its raw power to refuse to seat that nominee. Having reached that decision, the Republican majority did not even hold a hearing for an outcome that was predetermined. In looking back at that exercise of Senate power in 2017, I concluded that it was supported by historical precedent:
In short: There have been ten vacancies resulting in a presidential election-year or post-election nomination when the president and Senate were from opposite parties. In six of the ten cases, a nomination was made before Election Day. Only one of those, Chief Justice Melville Fuller’s nomination by Grover Cleveland in 1888, was confirmed before the election. Four nominations were made in lame-duck sessions after the election; three of those were left open for the winner of the election. Other than the unusual Fuller nomination (made when the Court was facing a crisis of backlogs in its docket), three of the other nine were filled after Election Day in ways that rewarded the winner of the presidential contest:
- In February 1845, the Whigs (who had lost the Senate and the White House in the 1844 election) compromised in the lame-duck session to seat one of Tyler’s nominees, leaving the other for incoming Democrat James K. Polk.
- In December 1880 and January 1881, the Democrats (who had likewise lost the Senate and failed to regain the White House in 1880) confirmed one of Rutherford B. Hayes’s nominees and defeated the other, who was then successfully renominated by Hayes’s Republican successor, James A. Garfield.
- In 1956, Dwight Eisenhower’s pre-election recess appointment of a Democrat, William Brennan, in mid-October was confirmed as a lifetime appointment in Ike’s second term after he was reelected and the Democrats continued to hold the Senate.
The norm in these cases strongly favored holding the seat open for the conflict between the two branches to be resolved by the presidential election. That is what Republicans did in 2016. The voters had created divided government, and the Senate was within its historical rights to insist on an intervening election to decide the power struggle. Had there been no conflict between the branches to submit to the voters for resolution, there would have been no reason for delay.
When Anthony Kennedy retired in 2018, I looked again at the historical practice, and concluded that the norm in midterm-election years favors confirming a Supreme Court nominee regardless of which party holds the Senate. This, too, has become the norm for a reason: While the Senate can always reject a particularly objectionable nominee, it is hard to justify forcing the Court to work short-handed for years on end.
So what does history say about this situation, where a president is in his last year in office, his party controls the Senate, and the branches are not in conflict? Once again, historical practice and tradition provides a clear and definitive answer: In the absence of divided government, election-year nominees get confirmed.
Nineteen times between 1796 and 1968, presidents have sought to fill a Supreme Court vacancy in a presidential-election year while their party controlled the Senate. Ten of those nominations came before the election; nine of the ten were successful, the only failure being the bipartisan filibuster of the ethically challenged Abe Fortas as chief justice in 1968. Justices to enter the Court under these circumstances included such legal luminaries as Louis Brandeis and Benjamin Cardozo. George Washington made two nominations in 1796, one of them a chief justice replacing a failed nominee the prior year. It was his last year in office, and the Adams–Jefferson race to replace him was bitter and divisive. Woodrow Wilson made two nominations in 1916, one of them to replace Charles Evans Hughes, who had resigned from the Court to run for president against Wilson. Wilson was in a tight reelection campaign that was not decided until California finished counting votes a week after Election Day. Three of the presidents who got election-year nominees confirmed (Benjamin Harrison in 1892, William Howard Taft in 1912, and Herbert Hoover in 1932) were on their way to losing reelection, in Taft’s and Hoover’s cases by overwhelming margins. But they still had the Senate, so they got their nominees through.
Nine times, presidents have made nominations after the election in a lame-duck session. These include some storied nominations, such as John Adams picking Chief Justice John Marshall in 1801 and Abraham Lincoln selecting Chief Justice Salmon P. Chase in 1864. Of the nine, the only one that did not succeed was Washington’s 1793 nomination of William Paterson, which was withdrawn for technical reasons and resubmitted and confirmed the first day of the next Congress (Paterson had helped draft the Judiciary Act of 1789 creating the Court, and the Constitution thus required his term as a senator to end before he could be appointed to the Court). Two of Andrew Jackson’s nominees on the last day of his term were confirmed a few days later, without quibbles. In no case did the Senate reject a nominee or refuse to act on a nomination; why would they? Three of the presidents who filled lame-duck vacancies — Adams, Martin Van Buren, and Benjamin Harrison — had already lost reelection.
The Adams precedent is the most famous; back when people read basic American history in school, everybody knew about Adams and the Federalists in the Senate stocking the courts with “midnight judges.” That is part of the story of the first peaceful transfer of power after a democratic election in history. The crown jewel of the midnight judges, Chief Justice Marshall, went on to become the most influential jurist in American history, entrenching the Federalist Party’s theories of the Constitution for many years after the party ceased to exist. Marshall served into Andrew Jackson’s presidency over three decades later, and his decisions still guide the American constitutional practice of judicial review.
In addition to Marshall, two of the other lame-duck appointees would go on to lead the Court: Salmon P. Chase, Abraham Lincoln’s Treasury secretary, was appointed Chief Justice by Lincoln a month after the 1864 election, and Harlan Fiske Stone, appointed by Calvin Coolidge in January after the 1924 election, would later be elevated by Franklin Roosevelt to Chief Justice in 1941. Lincoln was the only president with a favorable Senate to have a vacancy open just before the election (in mid-October, with the death of Dred Scott author and Lincoln bête noire Roger Taney) and wait until he had won to make a nomination. He had his own strategic reasons to want his own position fortified before using the plum position of Chief Justice to rid himself of Chase, who had angled for Lincoln’s job in 1864 and was trusted by Lincoln ideologically but not politically.
A few of these late-term nominations — but only a few — were made with an eye to political concession. Hoover required two tries to fill a vacancy with a Republican in 1930. When Oliver Wendell Holmes retired in 1932, Hoover was mired in the Depression and fighting for his political life. He chose a Democrat: the liberal, Jewish New Yorker Cardozo, then the most prominent state-court judge in the country and widely seen as a worthy successor to Holmes’s legacy as a common-law judge. Benjamin Harrison, having filled one seat in July 1892 with Republican George Shiras, picked Democrat Howell Jackson for his second choice in the lame-duck session in January 1893. Jackson was not just any Democrat: like his predecessor, Lucius Q. C. Lamar, Jackson had served in the government of the Confederacy. He was also a Harrison family friend. These were, however, political choices; the other 17 vacancies were filled by men from the party holding the presidency and the Senate.
The bottom line: If a president and the Senate agree on a Supreme Court nominee, timing has never stopped them. By tradition, only when the voters have elected a president and a Senate majority from different parties has the fact of a looming presidential election mattered. When there is no dispute between the branches, there is no need to ask the voters to resolve one.
Political Games and Previous Statements
As MSNBC’s Sahil Kapur rounds up, Democrats are already issuing threats of retaliation if Republicans replace Ginsburg late in Trump’s term, in light of the Republican rejection of Garland and the widespread expectation that Trump will lose reelection to Joe Biden. Their arguments for doing so, however, are a transparent sham.
Tim Kaine, the Democrats’ 2016 vice presidential nominee, rests his case against a nomination — and for Court-packing in retaliation — on historical precedent:
“If they show that they’re unwilling to respect precedent, rules and history, then they can’t feign surprise when others talk about using a statutory option that we have that’s fully constitutional in our availability. I don’t want to do that. But if they act in such a way, they may push it to an inevitability. So they need to be careful about that.” . . . [Kaine] said confirming a nominee of President Donald Trump this year could compel Democrats to consider adding seats to the high court.
Based on the history set forth above, however, Kaine does not have a leg to stand on talking about “precedent, rules and history.” He’s arguing for Republicans to adopt a new rule contradicting traditional practice. For good measure, he shows that he doesn’t know the history behind the rejection of Garland, and throws in a barely concealed dog-whistle charge of racism: “We knew basically they were lying in 2016, when they said, ‘Oh, we can’t do this because it’s an election year.’ We knew they didn’t want to do it because it was President Obama.” In fact, Obama’s own White House counsel admitted that she would have recommended the same course in 2016 had the parties been reversed.
While some Republicans (notably John Thune) are vocally ready to confirm an election-year nominee, two Republican senators who backed the rejection of Garland have expressed concerns about moving forward under these circumstances. One, Lisa Murkowski, voted against Justice Kavanaugh and is not really a must-win vote. But the other, former Judiciary Committee chairman Charles Grassley, is more influential, and still sits on the committee (now chaired by Lindsey Graham), where all twelve Republicans would be needed to pass a nomination.
Grassley has repeatedly suggested that he would not go forward with a nomination if he was still chairman, because it would look hypocritical to go back on the Garland precedent and confirm a nominee in an election year. But an election year alone is not the historical rule. It is not what Mitch McConnell said at the time, and it is not what Grassley said at the time, either. The fact of divided government was what connected their concerns about an election-year nomination to historical practice.
McConnell, in his initial 2016 press conference after Scalia’s death on February 23, 2016, explicitly invoked the relevant historical precedents (emphasis added):
The next president should make this nomination. The — that certainly is supported by precedent. You’d have to go back to 1888 when Grover Cleveland was in the White House to find the last time a Senate of a different party from the president confirmed a nominee for the Supreme Court in an election year, . . . Who should make the decision? . . . the nomination should be made by the president the people elect in the election that’s underway right now…the overwhelming view of the Republican Conference of the Senate, in the Senate, is that this nomination should not be filled, this vacancy should not be filled by this lame-duck president. That was the view of Joe Biden when he was chairman of the Judiciary Committee in 1992. . . . We know what would happen if the shoe was on the other foot. We know what would happen. A nominee of a Republican president would not be confirmed by a Democratic Senate when the vacancy was created in a presidential election year. That’s a fact.
McConnell repeated the point about divided control of the Senate and White House and the not-since-Fuller-in-1888 historical precedent a few weeks later, in a nationally televised Fox News Sunday interview on March 20, 2016, with Chris Wallace:
I think what we need to focus on is the principle, the principle. Who ought to make this appointment? You have to go back 80 years to find the last time a vacancy on the Supreme Court created in a presidential election year was filled. You have to go back to 1888 when Grover Cleveland was in the White House to find the last time when a vacancy was created in a presidential year, a Senate controlled about it party opposite the president confirmed.
The political reality behind the so-called “Biden rule” frequently invoked by McConnell and Grassley in 2016 is that the Senate in 1992 was held by Democrats, and by warning the first President Bush against an election-year nomination, Biden was asserting the partisan prerogatives of the Democratic Senate majority. In fact, Biden in his June 1992 speech on refusing to confirm any election-year Bush nominees leaned explicitly on the different standards applicable to divided government:
What distinguished the Reagan-Bush Justices from these historical parallels . . . is that half of them have been nominated in a period of a divided government. . . . Since 1968, Republicans have controlled the White House for 20 of 24 years. Democrats have controlled the Senate for 18 years of this period. The public has not given either party a mandate to remake the Court into a body reflective of a strong vision of our respective philosophies. . . .
If in this next election the American people conclude that the majority of desks should be moved on that side of the aisle, there should be 56 Republican Senators instead of 56 Democratic Senators, 44 Democratic Senators instead of 56 or 57 Democratic Senators, and at the same time if they choose to pick Bill Clinton over George Bush, we will have a divided Government and I will say the same thing to Bill Clinton: In a divided Government, he must seek the advice of the Republican Senate and compromise. Otherwise, this Republican Senate would be totally entitled to say we reject the nominees of a Democratic President who is attempting to remake the Court in a way with which we disagree.
To be sure, McConnell did not spell out all the elements of his precedential argument every time he spoke on the subject, and other Republican senators regularly couched their responses in broad terms about a pending election that did not grapple with the historical precedents. But Grassley, like McConnell, repeatedly cited the precedents on which his committee was relying:
- February 22, 2016, in a floor statement: “Republicans hold the gavels in the Senate. And a term limited Democrat in the twilight of his presidency occupies the White House. . . . Justice Scalia’s death marks the first time a sitting Supreme Court Justice has passed away in a presidential election year in 100 years. And it’s the first time a sitting Supreme Court Justice passed away in a presidential election year during divided government since 1888…”
- February 23, 2016, in a Judiciary Committee letter to McConnell on not holding hearings: “Not since 1932 has the Senate confirmed in a presidential election year a Supreme Court nominee to a vacancy arising in that year. And it is necessary to go even further back — to 1888 — in order to find an election year nominee who was nominated and confirmed under divided government, as we have now.”
- February 26, 2016, in an op-ed entitled “Giving the People a Voice — The Supreme Court Vacancy”: “History supports this practice. Not since 1888 has an election year nominee been confirmed during a divided government to fill a vacancy occurring in the same year.”
- May 10, 2016, in a Medium post on “Debunking SCOTUS Myths”: “In 2012, the American people re-elected Barack Obama as President of the United States. In 2014, the American people elected their respective members of Congress, handing over control of the United States Senate to Republicans. . . . Nominating and confirming a Supreme Court justice in a presidential election year, particularly under divided government, would be unprecedented in modern American history. It has been 128 years since a Supreme Court justice was nominated and confirmed in a presidential election year while the president’s opposing party controlled the Senate (1888, President Grover Cleveland, Justice Melville Fuller).”
Mike Davis, former chief counsel for nominations for Senator Grassley on the Senate Judiciary Committee and now president of the Article III Project, says that “Senator Grassley was the key figure in keeping the Scalia seat open, and on President Trump’s historic transformation of the federal judiciary. Chairman Graham has said that he would move forward with a nomination, and I am confident that Senator Grassley will fully support that nomination.” Grassley has emphasized publicly that the decision would be Graham’s, and Davis notes that Grassley has said that he would support Graham’s decision. So, whatever Grassley’s misgivings, they should not deter Republicans from moving forward.
The Nuclear Option
The final concern expressed by those hesitant to confirm a new justice in an election year or a lame-duck session is that Democrats would use this as an excuse for ideological Court-packing that would destroy the Court’s legitimacy and, ultimately, the rule of written law in America. This is not a chimerical concern, but the Democrats’ behavior is not something Republicans can control in any event, and allowing them to threaten the destruction of the constitutional republic in order to cow Republicans out of following tradition would set a bad precedent of its own.
Democrats may pack the Court anyway. A noisy faction of them, including failed presidential contenders on Biden’s vice-presidential shortlist, have already committed to Court-packing. Kapur reports that “the Democratic National Committee is poised to add language to the party’s 2020 platform endorsing ‘structural court reforms to increase transparency and accountability’ and accusing Republicans of having “packed our federal courts with unqualified, partisan judges” — efforts to justify Court-packing and blur the term’s meaning that predate any move to replace Ginsburg.
Or they may not. Biden is on record opposing Court-packing, for whatever influence he may have after the election. Bernie Sanders has opposed it, too. They and other experienced Democrats recognize the potentially explosive political consequences of openly making war on the independence of the judiciary, given how badly it played even for Franklin D. Roosevelt at the pinnacle of his popularity. Having history on their side would make the Republican defense against Court-packing a formidable base from which to launch a major last-ditch resistance on behalf of the Constitution entering the 2022 midterms. The post-Kavanaugh rally of Republican Senate candidates in 2018, while their colleagues in the House were sinking, testifies dramatically to the galvanizing effect that fights over the Court have on Republican voters.
Few things contributed more to the Republican Party’s institutional inability to resist a hostile takeover by Donald Trump in 2016 than a widespread sense that the party would not even fight for its own stated principles if it could find any excuse not to. Nothing is more central to Republicans’ stated principles than control of the Supreme Court by Justices who believe in the written Constitution. No practical application of those principles is more iconic and visceral in its importance than social conservatives’ long labors against Roe v. Wade, a battle in which John Roberts seems to require more reinforcements before he will act.
Republicans should not discard the rule of law or traditional norms to achieve their ends, but a Ginsburg vacancy, if one happens, would require Republicans only to act within the law and in accord with tradition. Woe to their future if they shrink from that.
Editor’s note: This article has been edited since publication.