The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.