To the astonishment of…no one…Mitch McConnell announced within hours of the death of Justice Ruth Bader Ginsburg that a nomination from President Trump to fill the seat “will receive a vote on the floor of the United States Senate.” No surprise here. The Republicans wouldn’t consider an Obama nomination eight months before the 2016 election, but they’re determined to get Trump’s a month and a half before the 2020 election. Shameful. Embarrassing. Partisan nonsense. No one should be proud of this. Mitch McConnell needs to go.
It is not just Mitch McConnell, though. John Thune, the Majority Whip, echoed his leader, saying, “As Leader McConnell has said, President Trump’s Supreme Court nominee will receive a vote on the floor of the U.S. Senate.” Not wanting to be left out, Texas senators Ted Cruz and John Cornyn promptly jumped on board Mitch McConnell’s hypocrisy train. According to the Texas Tribune, Cruz announced on Friday that an “urgent confirmation” was needed. In an opinion piece for FOX News on Sunday, Cruz insisted that Trump “must nominate a successor next week and…the Senate must confirm that successor before Election Day.” His reasoning? It is why the American people elected President Trump and a Republican Senate, there is historical precedent, and, given the possibility of a contested election in November, America cannot be left with an eight-member Supreme Court.
A few thoughts here…
First, using George Washington’s election-year nominations as an example doesn’t even really count. His two nominations in 1796 were both confirmed the very next day. John Adams and Thomas Jefferson both made election year appointments too, and their nominations were confirmed within a week. But politics have changed so drastically since then that those examples cannot really be considered fairly.
In an article published last month in the National Review, Dan McLaughlin made the same point, insisting both that “History supports Republicans filling the seat,” and that doing so “would not be in any way inconsistent with Senate Republicans’ holding open the seat vacated by Justice Antonin Scalia in 2016.” Really? Let’s see…
McLaughlin makes the same point that Cruz did, citing “twenty-nine times in history” when there has been an election year or lame duck session appointment. He names Washington, Adams and Jefferson. Then he mentions Abraham Lincoln. Lincoln nominated Salmon Chase as Chief Justice, to replace Roger Taney, on December 6, 1864. Four things about this appointment are noteworthy. First, it is a real historical travesty that Roger Taney was ever on the Supreme Court, given his decision in the Dred Scott case. Second, Chase was confirmed the same day that Lincoln nominated him, beating even the quick confirmation that Washington received for his nominees. Third, as I mentioned, Lincoln appointed Chase on December 6. The election took place in November, and Lincoln won. Given that as far as anyone knew at that time Lincoln would be president for another four years, any delay would have been pointless. Fourth, however, and perhaps most importantly for this discussion, Taney died on October 12, 1864—four days shy of one month before the election. But Lincoln did not appoint Chase until two days shy of one month after the election. If Cruz, McLaughlin and Company want to use Lincoln as a precedent, it is not one in their favor.
McLaughlin also points out Ulysses S. Grant as an example. But, like Lincoln, Grant appointed Ward Hunt to the Supreme Court during an election year, but after the election—he appointed him on December 3; it was after Grant had already won re-election; and Grant appointed Hunt to replace Samuel Nelson, who retired from the Supreme Court on November 28, 1872, twenty-three days after the election—meaning that there was no vacancy prior to the election, and the appointment was not during a lame duck session.
Taft’s nomination was in February of the election year. Wilson’s were in January and July of the election year. Hoover’s was in February of the election year. FDR’s was in January of the election year. These would have been terrific precedents in support of Barack Obama’s nomination of Merrick Garland in 2016, but they do not do much to help McConnell and friends in this instance.
Oddly, McLaughlin claims “Dwight Eisenhower did it” but he didn’t. Eisenhower made appointments in 1955 and in 1957, but not in 1956, which was the election year.
LBJ nominated two in June of an election year and both were withdrawn–one due to a filibuster of the nomination to move Abe Fortas to Chief Justice, and the other because Homer Thornberry had been nominated for the Associate Justice position Fortas would have been vacating. Ronald Reagan nominated Anthony Kennedy one year before the 1988 election, but he was confirmed in February of the election year–by a Democratically-controlled Senate. (And any true conservative now wishes that the Democrats would have declined!)
Second, the Republicans put themselves in the position they are now in. President Obama nominated Merrick Garland in March 2016. That means Obama still had 20% of his term remaining. But the Republicans refused to even consider the nomination; they wouldn’t even allow it to come to a vote. Even if Trump were to make a nomination tomorrow, he has only about 7% of the current term remaining. Outside of Washington, Adams and Jefferson, there has never been a nomination made later than July of a presidential election year and before the election, with one exception. That exception was Millard Filmore’s nomination of Edward Bradford on August 16, 1852—and there was no action taken by the Senate. So, Cruz’s appeal to historical precedent falls woefully flat. Even John Tyler, who nominated three men a total of five times in the first six months of 1844 quit in June and did not act again until after the election, when he tried twice more in December.
The bottom line is that if Mitch McConnell and the Senate Republicans would have allowed the Garland nomination to proceed in 2016 this would be a completely different situation. But they did not, and now they find themselves faced with waiting or becoming guilty of obscene hypocrisy…and I think we all know which they are going to choose.
President Trump should absolutely make the nomination. Indeed, doing so could even help the Republicans in the November election, and he has every right to do so. But the Senate should not act on it. In fact, acting on it could well come back to bite McConnell and friends. As Russell Berman wrote last Friday in The Atlantic, “A number of Republican senators have already said they’d want to fill a Supreme Court vacancy while Trump is still in office. But McConnell would need the votes of 50 out of his 53 members to allow Vice President Mike Pence to break a tie (assuming all Democrats voted against Trump’s nominee), and the numbers may not be on his side.” In reality, Berman was being kind. Republican senators Susan Collins and Lisa Murkowski are already on record opposing a confirmation at this stage, and just about everyone knows that Mitt Romney is not going to support Donald Trump on this one.
Ironically, McLaughlin states in his article, “Norms are crucially important. If parties cannot trust that the other side will abide by established norms of conduct, politics devolves rapidly into a blood sport that quickly loses the capacity to resolve disagreements peaceably within the system.” He’s right, of course—only he is not right in the way that he thinks he is. He thinks history is on his side, and that that Senate should act to confirm. As we have seen, though, he is wrong about that. The norm of conduct that the Republicans established in 2016 is simple—no confirmation during an election year. No amount of foaming at the mouth or attempting to stretch historical precedent to fit their narrative will change that. The Republicans set the precedent, now they need to follow it. If they do not, they will have only themselves to blame when the tables are turned—which eventually they will be—and when voters express their displeasure—which at least some will.
Additional irony for the fire – since 1981, the only SCOTUS nominee to be appointed and confirmed within the amount of time that is available now before the November election was Ruth Bader Ginsburg.
Image credit: Gage Skidmore, with the conductor cap added by Jason Watson.