The Corner

Law & the Courts

It Doesn’t Matter That Garland Didn’t Get a Hearing

As I demonstrated in Monday’s column, Democratic efforts to claim that Judge Gorsuch should be defeated because Republicans “stole” a seat that rightfully belonged to Merrick Garland and President Obama collapse when you look at the history of election-year nominations. This is the seventh time that the Senate has left an election-year Supreme Court vacancy open for the next president, and of the ten such vacancies to happen when the president and the Senate were from different parties, six were left vacant, three were confirmed after Election Day in favor of the party that won the election, and only one (in 1888) was confirmed before Election Day.

There are a couple of common responses to this. One is to note that the Senate confirmed Anthony Kennedy, a Reagan appointee, in the election year of 1988. But Justice Kennedy was a victory for Democrats on a vacancy that long predated an election they ended up losing badly. Lewis Powell’s swing seat came open in June 1987, and Reagan’s first two, more conservative choices were thwarted (Bork by his defeat in the Senate, Douglas Ginsburg by withdrawal). The Senate in February 1988 — after more than seven months of delay, and a week before the Iowa caucus – confirmed an Earl Warren protégé who would go on to deliver massive victories for liberals on a number of key cultural issues (such as abortion and same-sex marriage). Moreover, Democrats in 1988 were acting in their partisan self-interest in taking the Kennedy nomination while they could, rather than run the 1988 campaign on cultural wedge issues (exactly what their nominee, Michael Dukakis, tried and failed to avoid).

The second is to complain that Garland never got an up-or-down vote. But as I noted in my column, majority parties in the Senate have used a variety of procedural devices to thwart Supreme Court nominees; of the 34 failed nominations (not counting one who was withdrawn and resubmitted for technical reasons), only twelve received a direct vote, and five were withdrawn in the face of opposition. The rest were prevented from moving forward due to a variety of Senate procedures. Some of those involved a vote on the record to table the nomination, some did not (William Micou’s nomination by Millard Fillmore in 1853 died without any action by the Senate). But Garland would have received a vote if there had been significant defections from the GOP majority; the absence of such defections (aside from Mark Kirk) means that a majority decided not to confirm him. A filibuster by a minority of the Senate would have been a radical step, but in this case, it was the Senate majority exercising its power.

Democrats are hardly on pristine ground here. Since the bipartisan (24 Republicans and 19 conservative Democrats) 1968 election-year filibuster of Abe Fortas and Homer Thornberry, there have been two efforts at filibusters of Supreme Court nominees, both by Democrats: against Samuel Alito and William Rehnquist. There’s some debate over whether the first of Rehnquist’s nominations can truly considered to have been filibustered: in 1971, Democrats denied that they were filibustering him, then defeated a Republican cloture motion (the 52–42 margin for cloture fell short of the 67 votes then required), but proceeded to allow an immediate vote. But in 1986, when he was nominated for chief justice, a cloture motion was filed to stop a Ted Kennedy filibuster, and passed 68–31, with sixteen Democrats voting for cloture and 31 against (senators voting against cloture included Joe Biden, John Kerry, and Al Gore). A more organized effort, led by Kerry, was made to filibuster Alito. This time, cloture passed by a vote of 72–25, with Kerry, Kennedy, and Biden now joined by Barack Obama, Hillary Clinton, Chuck Schumer, and Dick Durbin, among others, voting to filibuster Alito’s nomination.

The third and final avenue of attack is to complain that sure, the Senate has spiked nominees without a floor vote before, but they didn’t even give Garland a hearing. But this misunderstands the role and history of hearings. The Constitution says nothing about nomination hearings, which are a relatively modern innovation. No Supreme Court nomination received a public hearing until Louis Brandeis in 1916, and Harlan Fiske Stone in 1925 was the first nominee to appear and testify before the Senate. Harold Burton in 1945 was the last Justice confirmed without a hearing. (John Marshall Harlan II was denied a hearing when nominated after the midterm elections in 1954, although he returned, testified, and was confirmed in the following Senate session in 1955.) And as any nominee (including Gorsuch) can tell you, Judiciary Committee hearings aren’t for the benefit of the nominee, they’re for the benefit of the senators. In 2016, the Senate majority decided to leave the Scalia vacancy open, to be filled after an election they had only slim hopes of winning. No hearing would have persuaded anyone of anything. The Senate wastes enough time on pointless charades as it is.

The Senate’s refusal to consider the Garland nomination was a new packaging of the Senate’s power, and Democrats are right to complain that it was yet another step down the path of that has poisoned the confirmation process. But it was not actually unprecedented in any meaningful way for the party controlling the Senate to decide that an election-year Supreme Court nomination should be set aside until after the election.



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