Supreme Court Nominations — Historical Precedent Supports Republicans

As I have argued, historical precedents support Senate Republicans in drawing a distinction in election-year Supreme Court nominations. When the president’s party controls the Senate, as it does in 2020, the Senate majority is well within its historic rights in confirming a nominee. It has done so 17 times out of 19. When the opposition party controls the Senate, as it did in 2016, the Senate majority is well within its historic rights in declaring that the two branches are deadlocked and the nomination should be held open for whichever party wins the national election. Only one out of ten presidents got a nominee through before an election in those circumstances. Given that my column has been cited by a number of Republican senators on Twitter and even by the White House press secretary in Tuesday’s briefing, there has been some pushback, though surprisingly little in any depth.

I can dispense up front with two of the common themes. One, I’m not arguing that historical practice is so deeply settled that it required Republicans to act as they did, merely that the pattern of past nominations supports their doing what they presumably wanted to do anyway. As my column noted, we assume that political actors will use the powers at their disposal unless some norm constrains them. Elections are supposed to have consequences — Senate elections just as much as presidential elections. Here, the precedents we have point in favor of Senate Republicans, not against them, so they should do what the voters elected them to do.

About the Author

Dan McLaughlin

Dan McLaughlin is a senior writer at National Review Online and a fellow at National Review Institute.

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As I have argued, historical precedents support Senate Republicans in drawing a distinction in election-year Supreme Court nominations. When the president’s party controls the Senate, as it does in 2020, the Senate majority is well within its historic rights in confirming a nominee. It has done so 17 times out of 19. When the opposition party controls the Senate, as it did in 2016, the Senate majority is well within its historic rights in declaring that the two branches are deadlocked and the nomination should be held open for whichever party wins the national election. Only one out of ten presidents got a nominee through before an election in those circumstances. Given that my column has been cited by a number of Republican senators on Twitter and even by the White House press secretary in Tuesday’s briefing, there has been some pushback, though surprisingly little in any depth.

I can dispense up front with two of the common themes. One, I’m not arguing that historical practice is so deeply settled that it required Republicans to act as they did, merely that the pattern of past nominations supports their doing what they presumably wanted to do anyway. As my column noted, we assume that political actors will use the powers at their disposal unless some norm constrains them. Elections are supposed to have consequences — Senate elections just as much as presidential elections. Here, the precedents we have point in favor of Senate Republicans, not against them, so they should do what the voters elected them to do.