Law & the Courts

Fill the Supreme Court Vacancy Now

People gather in front of the Supreme Court following the death of Justice Ruth Bader Ginsburg, Washington, D.C., September 18, 2020. (Al Drago/Reuters)
History shows why it must be filled by this president and this Senate.

No party that controls both the White House and the Senate going into a general election would ever defer a Supreme Court vacancy to the next president and Congress. The Democrats’ demands that Republicans do so now, under the familiar threat of packing the Court and essentially blowing it up, is simply ridiculous. Republicans should be laughing it out of hand, which is exactly what Democrats would do if the situation were reversed.

Any rational adult should be able to see that this situation is totally different from the situation facing Obama in 2016. That is because, in 2016, the Senate and the White House were controlled by opposing parties (the Senate was in Republican hands, and the White House was in Democratic hands). Historically, when a president has nominated a Supreme Court justice while the Senate has been controlled by the opposing party, the results (more on these below) have not turned out well for the president’s party. Given the rocky history of such nominations, the “McConnell rule” — holding that, when the presidency and the Senate are controlled by opposing parties, vacancies in a presidential election year should not be filled before Election Day — made eminent sense in 2016. Unless the president is willing to offer up a nominee that the opposition party would be delighted to confirm, it’s better to wait until after the next election.

Democrats are having trouble understanding this because, unlike Republicans, they have almost never had to face the situation that Obama faced in 2016. Bill Clinton was the first Democratic president to face a Senate controlled by Republicans since Harry Truman. But neither Clinton nor Truman had a vacancy open up during their periods of “cohabitation” with a Republican-controlled Senate.

Before Barack Obama, the last Democratic president who had a Supreme Court vacancy open up during a Republican-controlled Senate was Grover Cleveland, who nominated the northern Democrat Melville Fuller to the Court in 1888, sparking a fierce confirmation battle. Barack Obama was thus the first Democratic president in 128 years to have to bother with a Republican-controlled Senate during a Supreme Court vacancy. The main reason is that Democrats have controlled the Senate the vast majority of the time since Franklin D. Roosevelt’s election in 1932.

Republican presidents, on the other hand, have had to contend with Democratically controlled Senates to fill many Supreme Court vacancies. Just looking back to the Nixon administration, we see that Republicans have made no less than eleven nominations to the Supreme Court in the face of a Democratically controlled Senate. It has been a rocky road, full of disappointments for the president, the GOP, and quite often the nominee.

Nixon’s first judicial appointment was the Republican Warren Burger. Nixon thought he was nominating a strict constructionist, but Burger turned out to far more progressive than conservative. Nixon’s next two nominees were both rejected by the Democratically controlled Senate. His fourth nominee, Harry Blackmun, went on to become a progressive stalwart, authoring the majority opinion in Roe v. Wade. Nixon’s next nomination, the largely unknown Lewis Powell, turned out to be a pro-business conservative, but he routinely joined the progressive side of the Court, including the majority in Roe.

In 1971, Nixon nominated the young conservative William Rehnquist to the Court. Rehnquist sailed through confirmation — not surprising given Nixon’s sky-high approval ratings at that time. Rehnquist went on to become chief justice of the first nominally conservative Supreme Court since the 1930s, though he affirmed virtually all the progressive precedents since the New Deal. After Watergate and Nixon’s resignation, President Gerald Ford nominated John Paul Stevens, another Republican who turned out to be a progressive stalwart on the Court.

Ronald Reagan’s election in 1980 gave Republicans control of the Senate for the first time since 1932. He was able to get Sandra Day O’Connor and Antonin Scalia through confirmation before the Senate flipped back to the Democrats in the midterm election of 1986.

The following year, Reagan nominated Robert Bork. The Bork confirmation hearings, presided over by Judiciary Committee chairman Joe Biden, were carried live on television, and they gripped the nation. Bork became the target of a vicious campaign of character assassination in which Senator Ted Kennedy was a prime rabble-rouser. After the Senate nuked Bork’s nomination, Reagan nominated the moderate Anthony Kennedy, who sailed through confirmation on his way to becoming another swing vote on the Court and a reliable progressive on social issues.

President George H. W. Bush faced a fiercely Democratic Senate, with Senator Joe Biden again presiding as chairman of the Judiciary Committee. His first nomination, David Souter, was controversial chiefly because he had written so little and was so circumspect in his testimony that it was hard to know what he believed on any topic, or whether he believed anything at all. He went on to become a reliable progressive, another Republican appointee who turned out to be a major disappointment for Republicans.

Bush’s next nominee, the quiet and unassuming Clarence Thomas, proved as controversial as Robert Bork, with Democrats once again engaging in despicable character assassination against the nominee. This time, the public didn’t like it, and the “high-tech lynching” didn’t work. Thomas was confirmed with a half-dozen Democratic senators joining the Republicans. He was the last nominee to face a Senate confirmation process controlled by the opposite party — until Obama nominated Merrick Garland.

So, of the eleven nominees sent by Republican presidents to a Democratic Senate, three were rejected, two were subjected to character assassination, the majority proved to be progressive, and most of the rest turned out to be swing votes. Only two out of the eleven Republican nominees proved to be reliably conservative justices of the Supreme Court. That suggests that the odds of a president getting a nominee that his party will be happy with through a confirmation process controlled by the other party are less than one in five. That could not have been lost on the smart lawyers in the Obama White House.

There is a cautionary tale here, for Republicans and Democrats. If Senate majority leader Mitch McConnell had agreed to take up the Garland nomination, there is little chance that Republicans would have engaged in the ugly character assassination that has now become routine on the other side. But there was zero chance that Garland would turn out to be conservative, and with the Senate controlled by constitutionalists for whom the Supreme Court had become the Republic’s last line of defense, the nomination would almost certainly have been defeated.

In order for Obama to get a nominee past the Republican Senate, he would have had to nominate somebody far more conservative than Garland. Confronted with that prospect, and facing an election he thought Democrats were likely to win, Obama evidently preferred to leave the seat vacant. Hence, it was Obama — not McConnell — who took his chances and deferred the nomination until after the inauguration of the next president and Congress. That is why Obama didn’t simply withdraw the Garland nomination and nominate a congenial conservative that the Republican Senate would have been happy to confirm. There were many such candidates available — for example, Brett Kavanaugh.

If Obama found himself in Trump’s situation, it is totally obvious that he would immediately nominate a candidate, and the Democratic Senate would immediately begin the confirmation process, and Obama would laugh at anyone who suggested otherwise. And that is exactly what Republicans must do now.

With the election coming fast, and GOP senators such as Susan Collins facing tough reelection battles of their own, the decision of whether to have the final confirmation vote before the election or afterward is a tactical one, as implied in Collins’s carefully crafted statement. This Senate continues until the end of January, and those senators facing tough reelection battles might find it easier to confirm Trump’s nominee after the election — regardless of who wins in the Senate and who wins the presidency. For strategic reasons, however, Republicans may want to hold the confirmation hearings as soon as possible, in the first or second week of October. Such are the considerations weighing on Mitch McConnell’s mind now — and no doubt on the president’s as well.

Meantime, the key thing to remember is that the Democrats have never and would never do what they are now asking Republicans to do. The Supreme Court seat left open by the titanic Ruth Bader Ginsburg will be filled by this president and this Senate. The Democrats’ howls of execration are perfectly understandable. But there is simply no other conceivable outcome given the elections that left Republicans in control of both the White House and the Senate.

Correction: An earlier version of this article stated that Richard Nixon nominated John Paul Stevens to the Supreme Court. In fact, Gerald Ford nominated Stevens.

Mario Loyola — Mr. Loyola, a former White House speechwriter and environmental adviser, is a senior fellow at the Competitive Enterprise Institute.

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