To follow-up with Ed’s post about election year confirmations, it seems that historical precedent for a nomination similar to this one – i.e. one not just arising in an election year, but when the White House and Senate were controlled by different parties – is even rarer than he thought.
Josh Blackman reports on his blog that the last time such a confirmation occurred under divided government was when Rutherford B. Hayes appointed Justice William Burham Woods in 1880. Amazingly, that’s the only historical example since the Civil War of a confirmation during an election year under divided government. The other eight such confirmations, including the 1932 example of Cardozo that Ed points to, all happened under united government.
That shouldn’t be surprising: Senators of the same party as the president would generally have no qualms about moving quickly to confirm his pick. Nor can it be ignored that the approach to judicial confirmations was dramatically different before the 1980s. In the world we now live in, when judges’ philosophies are sharply divided and neither party blindly assents to the President’s choice, such a confirmation is unthinkable.
The President’s best course of action is to simply leave the seat open and allow the American people to have a voice in the future of the Court. But as he has said he would fill the spot, I see no reason to expect a GOP-controlled Senate to vote in favor of his choice.
This President has repeatedly demonstrated his contempt for the Constitution and the rule of law. His previous two appointments to the Court – including Justice Kagan, who some suggested would be a moderate simply because she does not go out of her way to be rude to conservatives – have voted in lockstep with the most liberal justices on the Court. There is no reason to suppose this President won’t nominate a justice he believes will fit the same ideological role and rubber-stamp his ambitions for executive power. Any Senator who votes to confirm such a justice would violate his or her oath to uphold the Constitution.