|Robert H. Bork under fire by the Senate Judiciary Committee,|
1987. (Photo: Jose R. Lopez, New York Times.)
Associate Justice Antonin G. Scalia’s body was barely on its way out of the ranch resort where he died when Republicans started a movement to block Pres. Barack Obama’s eventual nominee for the empty SCOTUS seat.
Indeed, between the progressive celebrations (“Good riddance!” “Ding, dong, the witch is dead!”) and the indecent haste in politicking, it’s a wonder that anyone managed a moment to pay sincere respect for a man who, right or wrong, exerted tremendous influence over our nation’s jurisprudence … and whom many people thought was a likeable guy. (I find it interesting that his long friendship with his colleague, the arch-liberal AJ Ruth Bader Ginsburg, was made the subject of a light opera!)
Some progressives are content to wait the Republicans out, convinced that the Democrats will win in November and that either Hillary Clinton or Bernie Sanders will get Scalia’s place filled … in fact, some want Obama to fill the spot. However, others are not as confident, and want others on the left to start pressuring Senate Republicans to confirm whomever Obama names. To that end, various people are creating memes with distorted or bogus facts, all arguing to the idea that the Senate is somehow obligated to give Obama one more SC justice.
Refusing to confirm a nominee, even delaying an appointment into the next presidency, isn’t a new tactic. Refusing to confirm a nominee on grounds other than his/her legal competence isn’t exactly new, either; there’s a reason why they call it “Borking”. (If you’re too young to remember, and not too lazy to look it up, Google-search “Robert H. Bork”.) Nor have Democrats been mere rubber stamps to Republican presidents’ wishes (again, see “Robert H. Bork”). Of the 151 men and women nominated to the bench since 1789, 29 were unsuccessful at least on the first try. Only 12, though, had been fully considered and rejected; the rest were withdrawn, tabled, postponed, or nullified by circumstance.
Article 2, Section 2 of the Constitution gives the President the power to appoint Supreme Court justices “by and with the Advice and Consent of the Senate”. No time frame, however, is mentioned; nor is the Senate required to approve whoever the President nominates. Article 3, Section 1 establishes that “The Judges ... shall hold their Offices during good Behavior,” but doesn’t establish what qualifications they are to have. By the letter of the Constitution, the Supremes need not even be law school graduates, let alone members of the bar.
Now, let’s set the parameters of the current situation:
- The President is in his final year of office.
- The President is not a candidate for re-election.
- The SCOTUS seat has come open in his final year.
- Lyndon B. Johnson (1968): Abe Fortas was originally appointed to fill the seat left vacant by AJ Arthur Goldberg, whom Johnson had appointed US ambassador to the UN. When CJ Earl Warren submitted his resignation in 1968, LBJ, who had already announced his decision not to run for a second term in his own right, appointed Fortas to replace him, and Homer Thornberry to replace Fortas. However, Fortas was caught in an ethics scandal; he was forced to withdraw from the nomination, and eventually resigned from the Court in 1969. Thornberry’s nomination was never acted on. Richard Nixon nominated Warren E. Burger to replace Warren in 1969; Harry Blackmun replaced Fortas after two previous nominees were rejected.
- Rutherford B. Hayes (1881): Hayes’ successor, James A. Garfield, had already been elected when AJ Noah H. Swayne, a Lincoln appointee, retired; Hayes had pledged not to run because of questions concerning his election’s legitimacy. Hayes nominated Sen. Stanley Matthews, who wasn’t very popular with his colleagues. The Senate delayed action until after March, when Garfield re-nominated him, and confirmed him by a one-vote majority.
- Millard Fillmore (1852): The Whigs had already nominated Winfield Scott when AJ John McKinley passed away in July. The by-now unpopular Fillmore made four attempts to fill the slot; of the four, Sen. George E. Badger withdrew, and Sen. Judah P. Benjamin refused. The Senate took no action on either New Orleans attorneys Edward A. Bradford or William C. Micou. Fillmore’s successor, Franklin Pierce, finally nominated John A. Campbell, who served until the beginning of the Civil War.
- John Tyler (1844): Tyler, who was the first Vice-President to succeed to office by death of the President (William H. Harrison), had alienated most if not all of his supporters long before AJ Smith Thompson died in December 1843. (At one point, everyone in his Cabinet, save Secretary of State Daniel Webster, resigned en masse.) When AJ Henry Baldwin died in April 1844, Tyler now had two vacancies to fill, and no political capital to spend. He had already submitted two names for Thompson’s spot; Treasury Secretary John C. Spencer was rejected, while Chancellor of New York Reuben H. Walworth’s nomination was tabled. Tyler now named Edward King for Baldwin’s spot; his nomination was tabled. Again Tyler tried to get first Spencer then Walworth confirmed for Thompson’s seat, and King for Baldwin’s, but was unsuccessful. In the meantime, Tyler, who had initially tried to run again on a third-party ticket, dropped out of the race. Finally, the Senate confirmed New York Supreme Court Chief Justice Samuel Nelson to fill Thompson’s spot in February 1845. The Baldwin vacancy, however, went empty until the Senate confirmed a Pennsylvania state district court judge, Robert Cooper Grier, for the position in 1846. By that time, of course, Tyler had left office; Grier was nominated by James K. Polk.
Politics As Usual
In sum, there’s ample precedent for the Senate to table or reject a nomination to the Supreme Court in the last year of a President’s service, even when the President’s party controls the Senate. The nominee’s merits as a lawyer or jurist have rarely had anything to do with it; indeed, I wonder who the last SCOTUS nominee was whose legal and jurisprudential credentials didn’t take a backseat to his/her political views in the Senate’s deliberations.
This is just politics, folks … politics as it’s been played almost since the beginning, when Thomas Jefferson and Alexander Hamilton first began forming parties to push opposing legislative agendas. It might be nice if both President and the Senate considered a person’s qualifications abstractly, independent of desired outcomes. However, if there were ever a time they did so, that time has passed. In fact, whatever else the people say they want, they want justices whose judicial philosophies lead to results they like, whether those results are gotten through good legal reasoning or bad.
Indeed, what many people want is a “living Constitution”, one that changes to reflect the current mood of the country. But, as Scalia himself once said, “The Constitution is not a living organism. It is a legal document. It says what it says, and doesn’t say what it doesn’t say.” And the more activist judges enact the “living Constitution”, the less our country’s laws and lawmakers are constrained by the legal document that’s supposed to be “the supreme Law of the land”.