The Constitution Is Functioning Just Fine

In the New York Times, Timothy Huebner adduces a number of cases of Supreme Court nominations made and confirmed in election years, arguing that “in cases when vacancies have arisen during election years, the weight of history is clearly on the side of the president naming a successor and the Senate acting on that nomination.”  From this he concludes as follows:

The Republicans, who frequently cite the Constitution and look to historical precedent, have an opportunity to be true to their principles. They should ignore Donald Trump’s urging to “delay, delay, delay,” and help ensure our Constitution functions as it should — and as it has in the past.

We can indeed safely ignore Donald Trump, who is a johnny-come-lately to, well, everything about constitutional government.  He is certainly a straggler bringing up the rear when it comes to the collective resolve of Republicans to deny President Obama an appointment to fill the vacancy left by Justice Scalia’s death.  Senators Mitch McConnell, Charles Grassley, Ted Cruz, and Marco Rubio were all there in front of him.

But be that as it may, “our Constitution functions as it should” just fine when the president exercises his power, and the Senate exercises its power, just it pleases to do so.  And the N (as the social scientists say) of historical examples in which a vacancy opened up during an election year of a president in his term-limited final year; in which the seat had been occupied most recently by a justice jurisprudentially at the opposite pole from the the views of the sitting president; in which that president faced a Senate controlled by the opposite party, a party in sympathy with the jurisprudence of the late justice; and in which that president had a track record of (at best) indifference to the integrity of the Constitution—appears to be exactly one, namely the present case.

Herewith some statistics about Supreme Court nominations drawn from the useful tables in the appendices of the Oxford Companion to the Supreme Court of the United States (edited by the late Kermit Hall, second edition 2005, figures supplemented by me as needed for the last ten years):

  • Supreme Court nominations defeated by roll call vote: 12
  • Nominations withdrawn and not renewed for the original nominee: 8
  • Nominations on which a vote was formally postponed but then never taken: 4
  • Nominations on which no action whatsoever was taken by the Senate and the nominee never served: 4
  • Number of times the Court functioned for more than a year without all seats filled: 7
  • Number of times the Court functioned for more than 300 days without all seats filled: 10

We’re in for very interesting times ahead, and—as I indicated above—our case is new, so as Lincoln said, “let us think anew and act anew.”  But history also affords us some comfort that our institutions can survive a little healthy political conflict over the filling of a Supreme Court vacancy.  We have an opportunity to get this right, and there’s no need to be stampeded by dubious historical analogies or appeals to “principles” that are anything but. 


Matthew J. Franck — Matthew J. Franck is the Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute in Princeton, New Jersey.

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