In preparation for this morning’s announcement of President Obama’s nomination of someone to replace Justice Antonin Scalia on the Supreme Court, the White House has created a SCOTUS Nomination twitter feed, @SCOTUSNom. This morning, the feed has featured little factoids and slides about this history of Supreme Court nominations. As you might expect, the claims made have been quite selective and, in some cases, simply false. Here’s a sample.
@SCOTUSNom: “Since 1875, every Supreme Court nominee has received a Senate hearing or a vote.” This is false. Numerous nominees never received votes or hearings. Harriett Miers did not receive a vote nor a hearing. Douglas Ginsburg did not either. Both withdrew before there were hearings or votes. When President Rutherford B. Hayes nominated Stanley Mathews, the Senate did not act until after Hayes had left office and Mathews was renominated by Hayes’ successor, President James Garfield.
@SCOTUSNom: “Filling a #SCOTUS vacancy is not a political prerogative—it is a basic function and fundamental obligation.” Ed Whelan has already thoroughly debunked the idea that there is a constitutional obligation to act on a Supreme Court vacancy. See also Michael Ramsey’s take, and my VC post here.
@SCOTUSNom: “The last time a president’s Supreme Court nominee was denied a vote? 1875.” Homer Thornberry, nominated by President Johnson, didn’t get a vote because there was no vacancy to fill once the Fortas nomination was defeated (though he did receive a hearing). Abe Fortas didn’t really get a vote either — not an up-or-down vote at least — because cloture failed on his nomination. When the Senate denied cloture on Fortas, it “denied a vote” to both Fortas and Thornberry. Interestingly enough, that was the last time a President made a nomination in an election year. (And, the time before that, which was the last time there was a vacancy when there was divided government, President Eisenhower recess appointed a Democrat (William Brennan) to fill the vacancy, and the Senate considered Brennan’s nomination after the election.)
I could go on, but you get the idea. For more on the history of election year Supreme Court nominations, see my VC posts here and here.
And for what it’s worth, I believe the best governing norm would be prompt consideration of all judicial nominations, but that has not been the norm for quite some time, and after thirty years of escalating tit-for-tat (which began when Senate Democrats decided to begin trying to block Reagan’s lower court nominations in 1985, well before the Bork nomination), it’s a bit late to urge one side to engage in unilateral disarmament.






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