Lame Duck Appointments? We've Had a Few

|The Volokh Conspiracy |

The news that Justice Ruth Bader Ginsburg is again being treated for a recurrence of cancer has spurred yet more handwringing over the possibility of a late-term appointment to the U.S. Supreme Court. It also remains entirely possible that a justice might voluntarily choose to retire, perhaps in order to allow President Trump to fill the seat rather than see where the political winds take us over the next four or eight years.

I personally would not look forward to seeing the fireworks, and I wish Justice Ginsburg a speedy recovery. There is no doubt that a vacancy on the Court in 2020 would generate an extraordinarily heated political battle. It is quite likely that Senate Majority Leader Mitch McConnell would be able to hold together his coalition and fill any vacancy that might arise, assuming the White House is competent in quickly moving forward a solid nominee. The fight might well be damaging to the Court's own reputation, and there are the obvious comparisons to be made with the handling of Merrick Garland's nomination at the end of the Barack Obama administration.

I thought McConnell was making a bad political bet in 2016. Garland might not have been an enticing compromise candidate, but given that it seemed likely at the time that Obama would be succeeded by Hillary Clinton it was probably the best deal that McConnell could expect to get for Antonin Scalia's seat. Of course, Donald Trump pulled out a surprise victory, and McConnell's huge gamble paid off handsomely when Neil Gorsuch was confirmed to succeed Scalia.

What I did not understand at the time was the commonplace view on the left that McConnell had done something shocking or illegitimate. The White House and the Senate were controlled by opposite parties in an election year when a vacancy appeared on a court both parties cared about, and that the Republican Party especially cared about. Of course the Republican Senate was not going to be inclined to confirm anyone resembling a normal Democratic nominee. That's Politics 101. That had been the game for years across a wide range of government activities, from legislating to confirming. Neither party has given the opposition White House anything in an election year when it had the tools available to obstruct.

Supreme Court nominations are a bit different in that such ill-timed vacancies have been unusual, in that the costs to the Court of allowing a vacancy to sit for a long period of time are larger, and in that a Supreme Court nomination is high enough profile that it would have been easier for the Obama White House to have put pressure on the Senate to act, if it had been inclined to invest the energy to do so. But fundamentally, it has always been difficult to move a Supreme Court appointment through the Senate in an election year. The key to doing so successfully has always been enjoying same-party control of the Senate. Obama did not have that in 2016. Trump does in 2020.

After the failed Harriet Miers nomination in 2005, I looked at the history of failed Supreme Court nominations in some detail. As I noted then, actual lame-duck nominations made by after a presidential successor had been elected were not uncommon in the nineteenth century. The lame-duck period was relatively long before the Twentieth Amendment moved the date of presidential inaugurations. Without much financial security, justices were reluctant to voluntarily retire, and so unplanned vacancies were relatively common. As I noted:

Lame-duck nominations were a common feature of nineteenth-century appointment politics, accounting for 16 percent of all nominations made before 1900, but there have been no lame-duck nominations in over a century. Lame-duck nominations also had a high rate of failure.

As one might expect, lame-duck nominations were generally dead on arrival during divided government. Conversely, same-party Senates were more than happy to act on lame-duck nominations – when the Senate was on friendly terms with the president. John Adams, Andrew Jackson, and Martin Van Buren had no problem filling seats on the Court at the last minute. The Republican Rutherford Hayes had little difficulty persuading a Democratic Senate to confirm a lame-duck nominee when the alternative was waiting for his Republican successor to work with a more-Republican Senate after the inauguration. Benjamin Harrison had a harder time because the Democratic minority had the ability to run out the clock with a filibuster and wait for the incoming Democrat Grover Cleveland to be sworn in. Harrison outmaneuvered them by nominating a former Democratic senator for the seat. If he had tried Obama's gambit of naming an older, moderate Republican, he no doubt would have failed to fill the seat. The apostate "accidental president" John Tyler did not have much luck convincing a Whig majority in the Senate to confirm his nominations.

Late-term nominations made when the presidential election was on the horizon have always had a similar dynamic. Late-term nominations have actually been less common over the course of American history than lame-duck nominations, but they have been just as difficult to pull off. Lyndon Johnson tried to game the system by convincing Chief Justice Earl Warren to announce his retirement rather than risk the seat falling into frontrunner Richard Nixon's hands, and the move backfired when Warren Court critics in the Senate refused to line up behind Johnson's favorite, Abe Fortas. When Justice Charles Evan Hughes stepped down to accept the Republican presidential nomination in the summer of 1916, the Republican minority in the Senate could hardly obstruct Woodrow Wilson's decision to replace him with John Clarke. John Tyler and Millard Fillmore had little luck getting late-term nominations confirmed by a hostile Senate, though Grover Cleveland was able to get Melville Fuller confirmed as chief justice by a narrowly divided Senate in the summer of an election year.

Supreme Court nominations in the last months of a presidency have not been common since the nineteenth century, and they are particularly fraught in a highly polarized environment. But, fundamentally, this is politics as usual. McConnell would be practically unique in American history if he did not facilitate a president of his own party filling a vacancy on the high bench at any point in the next few months. Trump is an unusual president in many ways, but it would be yet another example of the idiosyncrasy of his presidency if he failed to put forward a nominee for a vacancy – even if that vacancy arrived after his own defeat in November. Presidents and Senates are not in the habit of leaving seats on the Court unfilled if they are in a position to fill them. That's not playing hardball. That's taking the layup.

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  1. Much is made of ginsburgs daily exercise routine, 30 pushups, personal trainer, etc.
    However , a video of her pushups used to demonstrate & highlight her health and strength actually showed a very frail individual. the pushups were on her knees with the arms doing pushups against a coffee table height bench

    1. She’s 87…

      1. She is 180 degrees from Trump, who lives on junk food and doesn’t exercise because he thinks he has only so much energy that he was to conserve for the (minimal) time he spends on the job.

        1. Well yes, It surprises me little that someone who authors endless pages of writings that have to appear convincing to history has more personal discipline than someone who likely doesn’t thoroughly read the crap he’s retweeting.

          However, Human Bodies are weird things. Trump could live to be 97 and Ginsburg could die next week.

  2. Keith- I don’t think your discussion it accounts for the fact that Sen. McConnell claimed his decision wasn’t partisan.

    He could have said, “I don’t want a Democrat appointing the next Supreme Court Justice, so I’ll stall to see who wins the election.” Dems (and whatever independents were paying attention) could then complain about partisan obstruction.

    But my recollection is that he articulated (and Republicans of all stripes then parroted) a neutral reason for their inaction. He claimed he was following a rule (which he attributed to Biden): No Supreme Court appointments will be heard by the Senate in the months prior to a Presidential election. (And remember, this was in March 2016, eight months before the election).

    When elected officials offer non-partisan reasons for their actions, isn’t it appropriate for the public to expect them to be consistent and to be outraged when their not? Or do you view reason giving as just words and unrelated to what we should expect in the future from elected officials?

    1. “No Supreme Court appointments will be heard by the Senate in the months prior to a Presidential election. ”

      You left out “when the president and senate majority are from opposite parties”

      1. The justification was way broader than that. He and others said the American people deserved a voice. That’s impossible to walk back.

        1. “That’s impossible to walk back.”

          Wanna bet?

          1. We’ve been through this before. You can’t. I mean if someone asks McConnell or vulnerable Senators point blank, “do the American people deserve a voice in 2020, yes or no?” He’s not going to say no.

            1. ““I believe marriage is between a man and a woman. I am not in favor of gay marriage.”
              -Barack Obama, 2008.

              Just consider Senator McConnell’s position to have “evolved”. He “understands” now, that for the good of all, he would need to confirm a good SCOTUS nominee, if it came up.

              1. That’s not comparable at all. Politicians don’t evolve to deciding that voters don’t deserve to be heard four years after saying they do.

                1. “That’s not comparable at all.”
                  I see…

                  The voters spoke in California about gay marriage in Prop 22 in 2000, limiting it to a man and a woman. That got overturned by judges 2008 on State Constitutional grounds. Voters spoke again in 2008 with Prop 8, passing an amendment to the state constitution defining marriage

                  Then Barack Obama changed his position, and personally helped craft a brief opposing it, 4 years later. Against the will of the voters.

                  So…. “Not comparable at all”.

                  uh huh.

            2. There is no political position that can’t be walked back.

              “He’s not going to say no.”

              Perhaps. He will say about 150 other words and go to the next question.

              1. Just keep showing him the clip. He can’t work around it.

                1. I bet he can.

                2. I think Bob is right.

                  Nothing is beneath McConnell.

                  1. Nothing is beneath McConnell.

                    But if the Democrats win the White House and Senate and McConnell does that….there will be more than nine Justices soon. While I don’t like court-packing schemes at all, that is a scenario that would make me consider whether, if it’s all politics and power, maybe it really is all politics and power.

                    Outrage would be an understatement. The legitimacy of the Court would be irreparably damaged.

            3. I don’t know who you guys think you’re fooling pretending that its only Republicans playing political games and the Democrats are so moral and above it all while simultaneously openly bragging about wanting to pack the Court. If you want someone dumb enough to convince go and post on Twitter to excitable antifa teens.

      2. Of course that’s not what McConnell said, but what does it matter. The Court is about power, not law.

    2. “When elected officials offer non-partisan reasons for their actions, isn’t it appropriate for the public to expect them to be consistent..”

      Ha. Ha. Ha.

  3. Repeated cancers and repeated infections. Each time she will be left a little weaker.

    Not too long left now.

    1. So long as she has enough time to (1) dance on Trump’s political grave (in her robe, with Kate McKinnon, on live television), (2) be part of the swearing-in ceremony that launches the Obama Court, and (3) wink at the five-justice conservative minority at the conclusion of her retirement event, I believe she will be satisfied.

    2. Sadly, yes. She should by rights have long since retired to enjoy her few remaining years, likely few remaining months at this point. But I guess she can’t think of anything she’d enjoy more than being 1/9th of our perpetual constitutional convention. Would she even resign short of death if Biden were elected?

      The thing you have to wonder is, is she really doing the job, or just acting as a front for her interns.

      1. You keep wondering, Brett . . . about Justice Ginsburg’s fitness and about Obama’s birth certificate.

        If that’s how you want to spend the time you have remaining before you are replaced, be my guest.

      2. You don’t recognize a strong spirit when you see one. By now, I’m not surprised.

        1. Your spirit can be as strong as all get out, and it doesn’t do you squat if it’s housed in a decaying body. Back in 2010 I went though chemotherapy for lymphoma. Couldn’t afford to go on disability, so I just worked through it.

          But, as I look back at my work during that period, I’m amazed at my employer’s generosity in paying me for it.

          RBG is in generally the same position: She may be a miracle of determination, but doesn’t mean she’s up to the work.

    3. Right or wrong, it’s easy to not be a ghoul.

    4. Weren’t you just complaining in comments section of a prior article about how you can’t even say “all lives matter” without having to worry about social blowback?

      By the looks of this post, it might be because you clearly don’t actually believe that words that you’re willing to utter.

    5. You think Trump is calling Erik Prince for a little “help” in the process?

  4. The problem with this is that Mitch McConnell said on the Senate floor that the American people deserve a voice in the decision as justification for not taking up Garland. Other Republican Senators echoed the position. They really can’t take that back. It’s not just about hypocrisy or flip-flopping. They’d have to admit that they actually don’t think Americans deserve a voice in how they are governed.

    I cannot envision McConnell himself or enough of his coalition would put themselves in a situation of being forced to answer the question: In 2016 you said the American people deserved a voice in the selection of the next Supreme Court Justice. Why don’t they deserve one in 2020?

    I assume he wants to try to hold the Senate, so there is no way he would want his vulnerable Senators answering that question.

    Or if it somehow is after an election where Trump and the GOP lose bigly: You said the American people deserved a voice in 2016. You heard them loud and clear on November 3? Why don’t they matter?

    Pretty sure he or his coalition doesn’t want to answer that either.

    And even if we ignore that aspect, McConnell probably is smart enough to realize that if he actually succeeded in filling the seat in a lame duck or a few months before an election the Democrats are just going to get pushed over the edge and simply expand the Court.

    1. The only sense in which he “can’t take that back” is how much Kentucky voters are willing to punish him for being a liar.

      1. Man, if voters punished politicians for being liars, we wouldn’t have any politicians left.

      2. No. I think there is a level of shame even he feels about some things, and being confronted with his own stirring words about Americans deserving a voice in such a monumental decision would make him feel it.

        1. “I think there is a level of shame even he feels about some things, and being confronted with his own stirring words about Americans deserving a voice in such a monumental decision would make him feel it.”

          Seriously?

          LOL No

          1. Yes seriously. I think shame works. Some people have a high threshold, but this is certainly at the point a politician with even vague awareness about where their power ultimately comes from would feel it.

            1. “I think shame works.”

              If Mitch had any shame he wouldn’t be in politics.

            2. LTG….sorry. Politicians do not have shame. Quite the opposite. Say one thing, do another. This is no different.

        2. McConnell is shameless. His arguments weren’t believable when he made them the first time. His about-face is predictable. The media and his political opponents are probably too incompetent to make the case against him, and even if they were up to the task, his constituents probably don’t care, anyway. This is Bob’s America. Partisanship and party above all else. I would never vote for McConnell, for anything.

          1. We’ve just seen it before. On both sides. The fillibuster fights have been hillarious, with people switching positions like clockwork.

        3. More shame than Harry Reid? Don’t think so. Of Course Reid was loud and proud about his lies.

    2. In other words, politicians being politicians.

    3. “no way he would want his vulnerable Senators answering that question”

      Collins, Gardner and McSally can vote no if needed. Pence breaks tie.

      “simply expand the Court”

      Great!

      1. I actually do think that an appointment would lead to the court being expanded if the Democrats win the WH and the Senate. (And if Trump wins, the Supreme Court is far from the biggest of the country’s problems.)

        1. It won’t take an appointment. If the Dems win the Presidency and keep the Senate it’s a certainty that they will pack the court, and every liberal here will find that there are good reasons to do so. Good and moral reasons to be sure.

          1. Don’t quit your day job. You won’t make it as a mind reader.

            1. You don’t need to be a mind reader for that, just a text reader.

    4. I think you are really overstating the long term impact of public perceptions with respect to specific events. A Supreme Court Pick? That has inter-generational impact. It is a hill worth dying on.

      Plus, Republicans can always fire back. “Say, rape-hoax Democrats treated the Kavanaugh hearings like a witch inquest, lets say we give them another chance. Maybe they’ll act like adults and human beings this time? If not, why should they be picking Judges?”

  5. McConnell’s explanation in 2016 was ridiculous and he deserved to be ridiculed. McConnell should have just said that the Senate would consider anyone President Obama nominated and then let the nomination wait.

  6. If there is a spot to be filled it won’t be RBGs. I presume her doctor has orders to keep her on life support until 1/21/2021.

  7. I can’t wait until this filthy, partisan hack finally croaks. I hope someone pours pork fat over her grave.

    1. And why pray tell is it pork in particular? Do you have some opinions on a particular religious group you’d like to share with the class?

      1. A way of spitting on her grave.

    2. You have the gender wrong.

      1. Ah yes, another day in the Reason commenters section. Humanity at its worst.

  8. Considering that these are lifetime appointments, the best solution in my view would be one that requires them to be a compromise. By that measure, appointments made when the presidency and the Senate are controlled by different parties are more legitimate than when they are not.

    1. Indeed. This is not supposed to be a government by autocracy — which, under Trump and a gutless same-party Senate, it certainly is.

  9. What horrific commentary.

    Trying to justify Trump’s appointment of a Justice by 19th century norms just because such an appointment would conform to the commentator’s political views is abhorrent.

    This site has some integrity. It is better than this.

  10. There are other reasons for the anger over Garland. One was that Republicans regularly offered high praise for him when the possibility of his appointment was academic. That changed quickly.

    Then there is the shabby treatment they gave him. No hearings, nothing. I think it would have been easier to swallow if he had gotten a vote.

    My own opinion is that he would have been confirmed, so McConnell basically took it on himself to deny Garland the seat. But even if not, those voting no would have had to justify their votes. That’s not nothing.

    1. Then McConnell and some other republicans decided to troll him again by floating him as an FBI Director in 2017. What a bunch of dicks.

    2. “Then there is the shabby treatment they gave him. Then there is the shabby treatment they gave him. No hearings, nothing.”

      Actually, I found that refreshing. I’m sure Garland could appreciate that it was nothing personal, but it was politics, and appreciated not having a drawn out, drag through the mud process for something that wasn’t going to happen anyway.

      I mean, it’s not like the GOP dug up an unverifiable story from someone who claimed that that Garland sexually assaulted her 40 year ago, and dragged his name through the dirt in a way that could never be refuted, because the details were so vague. That would be shabby treatment.

    3. Then there is the shabby treatment they gave him.

      Regardless of how one feels about McConnell’s conduct, this is a strange characterization. We’ve seen shabby treatment: nominees demonized as racists, misogynists, sexual harassers, rapists, segregationists, etc. The Republicans did not do that; they did not engage in the politics of personal destruction with regard to Garland at all. They just didn’t give him a vote. (Something admittedly unusual for SCOTUS nominees, but not at all unusual for judicial nominees.) I’m sure he wasn’t thrilled by that, but it was about the least shabby way to treat him other than confirming him.

    4. Then there is the shabby treatment they gave him. No hearings, nothing. I think it would have been easier to swallow if he had gotten a vote.
      Yes of course. If only they would respect a nominee like Democrats treat Republican nonminees. Thomas and Kavanaugh come to mind.

      1. You have the gender wrong.

    5. “Then there is the shabby treatment they gave him. No hearings, nothing. I think it would have been easier to swallow if he had gotten a vote.”

      You’re right. It would’ve been SO much better if they’d dug up a die-hard Republican who went to high school with him to invent a rape allegation and drag his name through the mud for a few months first.

  11. No, Scalia didn’t die “at the end of the Obama Administration”. There was almost a full year left.

    No, Garland wasn’t a “compromise candidate”. He had been specifically named as being acceptable by the Republican chair of the Senate Judiciary Committee.

  12. If Biden wins big and the Democrats retake the Senate, and Justice Ginsburg then dies on December 31, Trump and McConnell will spend the first week in January ramming a nominee through. That’s the way politics works.

    I myself care enough about the integrity of the process to believe both sides should at least play by the same rules. Since Obama wasn’t allowed a last year appointment, going forward neither should any Republican President. I’d be fine with Trump having a last year appointment if Obama had been shown the same courtesy. But the process itself should be party neutral.

  13. If Biden wins big and the Democrats retake the Senate, and Justice Ginsburg then dies on December 31, Trump and McConnell will spend the first week in January ramming a nominee through.

    The new congress is sworn in on January 3, so that would be difficult.

    1. Fine, I will amend my hypo. If she dies on Christmas Eve Trump and McConnell will then spend the last week in December ramming through a nominee.

      1. Requires a minimum of 30 hours debate. And answers to written questions. And that 30 hours must come during floor hours. 😉

        Maybe Thanksgiving, but after that, it is too late.

        1. And you don’t think Senate Republicans would vote to change the rules? You have far more faith in them than I do.

          1. I am 100% confident that the Trump administration already has a nominee in mind, and has fully vetted her/him. In other words, God forbid, if RBG leaves the court, Trump will announce her replacement nominee within a few days (and, if in Nov or Dec, as soon as the same day). Given her health issues, it would be political malpractice not to have someone already waiting in the wings. And what what you will about Trump’s incompetence in most things political, he’s done a great job (from the POV of the Federalist Society, Heritage Foundation, et al) with judicial nominations.

            1. I was under the impression it was a given that Trump’s next SC nomination would be Amy Coney Barrett.

  14. Of course, Donald Trump pulled out a surprise victory, and McConnell’s huge gamble paid off handsomely when Neil Gorsuch was confirmed to succeed Scalia.

    It was not a gamble at all. There was always going to be a lame duck session. If Trump lost, the Gorsuch nomination could be confirmed. But what if Obama withdrew the nomination? The constitution does not mention withdrawing a nomination. As far as I can see, the nomination could be confirmed, even if Obama withdrew it. So McConnel did not risk something worse than Gorsuch by waiting to see how the election came out. I guess in the past Presidential nomination withdrawals were respected, as a matter of courtesy, but that is not how the game is played these days.

    1. Yes, I always assumed that was the plan, and have said as much: Garland didn’t get voted down only because, if Hillary had won, they were going to immediately call the Senate into session and confirm him, to deny her a worse nomination.

      And the fuss over that would have made everything we’ve seen to date look like a love fest.

      1. Couldn’t she have withdrawn the nomination? I think the long-term problem was President Obama played ball by nominating a tame, approved and vetted candidate. He got statements from Republicans on the judiciary committee beforehand (to tie their hands). But then they wouldn’t have their hands tied. Who would ever play ball with Republicans again, after that?

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