In a Washington Post op-ed, Ruth Marcus sabotages her own case against Court-packing by concocting a false claim that the Senate’s handling of the Scalia vacancy in 2016 and of the Ginsburg vacancy in 2020 “gravely violated norms.” The nomination of Merrick Garland to fill the Scalia vacancy was, she asserts, “cut off far too soon in the political cycle,” while the nomination of Amy Coney Barrett to replace Ginsburg was supposedly “hustled through far too late.” The Court’s “current membership is in place illegitimately,” she contends, and “is behaving in a dangerous, even radical, manner.”
1. Marcus offers no argument in support of her claim that the Senate “violated norms”—much less did so “gravely”—in either instance, and her claim cannot withstand scrutiny.
a. Let’s start with the vacancy resulting from Scalia’s death in February 2016.
The prospect that a Senate controlled by the opposite party of the president would not act on a Supreme Court confirmation to a vacancy arising in an election year had long been baked into the process:
— Way back in 1992, a fellow named Joe Biden, then chairman of the Senate Judiciary Committee, gave a long floor speech in which he warned President George H.W. Bush that if a Supreme Court vacancy were to arise while the “political season [i.e., presidential campaign] is underway,” Bush should not nominate anyone to the vacancy until after the election. Biden further stated that if Bush were to ignore that advice, the Senate Judiciary Committee should “seriously consider not scheduling” a hearing until after the election.
— As this Politico article reported, in July 2007—more than 15 months in advance of the 2008 presidential election—Democratic senator Chuck Schumer, “a powerful member of the Democratic leadership,” told an American Constitution Society convention that the Senate “should not confirm another U.S. Supreme Court nominee under President Bush ‘except in extraordinary circumstances.’”
— In the immediate aftermath of the 2016 election, Kathryn Ruemmler, who served as President Obama’s White House counsel from June 2011 to June 2014, candidly acknowledged that if the political roles had been reversed—if, that is, a Supreme Court vacancy had arisen in an election year in which the president was a Republican and the Senate was controlled by Democrats—she would have recommended that Senate Democrats take exactly the same course (no hearings, no vote) that Senate Republicans took on the Scalia vacancy.
Nor did the history before 1992 ever establish the norm that Marcus posits. As Dan McLaughlin sums it up: “In all of American history, only one Supreme Court nominee in a presidential election year was confirmed before the election by a Senate of the opposing party”—in 1888. (Please don’t cite Anthony Kennedy: he was nominated in November 1987 to the vacancy that arose the previous July and to which Robert Bork was unsuccessfully nominated. After the Bork defeat, Senator Patrick Leahy threatened to refuse hearings on any Supreme Court candidate until after the 1988 elections, unless President Reagan nominated someone acceptable to Leahy.)
In short, there was no norm that called for the Republican-controlled Senate to act on the Garland nomination.
If any further legitimizing of Justice Gorsuch’s appointment were somehow needed, the fact that Donald Trump ran and won election on his commitment to fill the Scalia vacancy with a constitutional conservative would amply provide it.
b. Marcus’s claim that Senate Republicans violated some supposed norm in confirming Barrett to the Ginsburg vacancy is also wrong. Dan McLaughlin demolished such a claim in August 2020 (a month before Ginsburg’s death):
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….
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….
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?…
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.
In sum, the membership of the Court is in place legitimately, and it is reckless and destructive—especially for a self-described “instinctive institutionalist” like Marcus—to allege otherwise.
2. As evidence for her claim that the Court is “behaving in a dangerous, even radical, manner,” Marcus cites the Court’s ruling in the Texas abortion case and “the prospect of even more constitutional upheaval ahead” in Dobbs v. Jackson Women’s Health Organization. On the Texas abortion case, I will happily stand with liberal Yale law professor Akhil Amar and the justices in the majority rather than with Marcus and the dissenters. As for Dobbs, Marcus seems oblivious to the reality that it is Roe v. Wade more than anything else that ignited the modern confirmation wars and that it is the fully warranted overturning of Roe in Dobbs that would be an excellent first step in bringing those wars to an end.
3. Marcus’s false claims fuel the Court-packing cause that she says she opposes. Indeed, all too predictably, her colleague E.J. Dionne Jr., barely a day later, wrote his own response to Marcus, reciting the same false assertions that Senate Republicans had failed to “observe[] the long-standing norms surrounding appointments.”