The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In 2016, after the tragic passing of Justice Antonin Scalia, I blogged a fair amount on the history of election year supreme court vacancies and the ever-worsening judicial confirmation process. In these two posts, I surveyed the history of election year vacancies and confirmations:
- On Election Year Supreme Court Vacancies (2-13-2016)
- In Election Years, a (Spotty) History of Confirming Court Nominees (2-17-2016)
I also wrote a short article solicited by the George Mason Law Review arguing against the position (popular at the time in some circles), that the Senate had a constitutional obligation to hold hearings or provide a vote on President Obama's nomination of Merrick Garland.
As some of the arguments and history recounted in that piece seem relevant today, here are a few excerpts (footnotes omitted).
The argument that the Senate has a constitutional obligation to act on a Supreme Court nomination is anything but "clear." This claim finds no support in the relevant constitutional text, constitutional structure, or the history of judicial nominations. While there are strong policy and prudential arguments that the Senate should promptly consider any and all nominations to legislatively authorized seats on the federal bench, and on the Supreme Court in particular, the argument that the Senate has some sort of constitutional obligation to take specific actions in response to a judicial nomination is erroneous. Interestingly enough, the argument that the Senate has an obligation to consider judicial nominations is not new. In the face of Senate intransigence on some of his judicial nominees, President George W. Bush declared that: "The Senate has a Constitutional obligation to vote up or down on a President's judicial nominees." The argument was wrong then, and it is wrong now. . . .
. . .
The last time a Supreme Court vacancy arose in the calendar year of a Presidential election and was filled prior to an election was in 1932, when the Senate confirmed Benjamin Cardozo to fill the seat vacated by Justice Oliver Wendell Holmes. Facing a Senate that was split down the middle, and an impending election, President Herbert Hoover, a Republican, decided to nominate a prominent Democrat to fill the seat.
In June 1992, when considering the possibility of an election-year vacancy to the Supreme Court, then-Senator Joseph Biden spoke on the Senate floor of "the tradition against acting on Supreme court nominations in a Presidential year." In extended remarks, the then-Chairman of the Senate Judiciary Committee reviewed the history of Supreme Court nomination fights, explained why he believed Senate Democrats would be justified in delaying action on any prospective Supreme Court nominee should a vacancy occur prior to the election, and discussed how the Senate and President should work together on future Supreme Court nominations in future years. Senator Biden argued that should there be a Supreme Court vacancy that year, the President "should consider following the practice of a majority of his predecessors, and not—and not—name a nominee until after the November election is completed." He added further that were such a nomination made, and the President were to go "the way of Presidents Fillmore and Johnson" and "press an election-year nomination, the Senate Judiciary Committee should seriously consider not scheduling confirmation hearings on the nomination until after the campaign season is over." Senator Biden further noted that "no Justice has ever been confirmed in September or October of an election year—the sort of timing which has become standard in the modern confirmation process."
Then-Senator Biden no doubt overstated the existence of a meaningful tradition against confirming Supreme Court justices in election years. There is no such meaningful tradition, but nor is there a meaningful tradition of filling Supreme Court vacancies that arise in election years either. In some cases, Presidents have refrained from making such appointments until after the election. In other cases, when nominations were made, the Senate refused to act prior to voters casting their ballots. Where the Senate responded quickly to pre-election nominations, it has usually been when the Senate majority and the President were of the same political party and the overall balance of the Court was not at stake.
All told, there have been 15 occasions in which a vacancy arose in an election year, defined as a vacancy that occurred within a year prior to the election. Only seven of these vacancies were filled by a nominee confirmed by the Senate prior to the election.80 In two others, a president's election year nominees were confirmed after the election, but in both of these cases the nomination was not made until after the election either (and in one, the nominee was the sixth sent up for that seat). The remaining vacancies were not filled until later, usually by subsequent presidents. Justice Anthony Kennedy was confirmed in a presidential election year, 1988, although the vacancy arose and his nomination was first made in 1987, after two prior nominations had failed. In sum, there are too few instances of election-year vacancies upon which to build any claim of historical practice, in either direction, let alone the sort of unbroken tradition that could ripen into a constitutional norm obligating the Senate to act. . . .
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There are strong political and prudential arguments for prompt consideration of all nominees, but not particularly strong constitutional ones.
Ending the ever-worsening conflict over judicial nominations will not be achieved by playing an imaginary constitutional trump. Rather, it will occur when the competing sides of this conflict are willing to recognize the harm this conflict does to the judiciary, and the importance of a more regular and rational confirmation process. It will also likely occur only when each side is willing to engage in compromise. In short, the answer to the judicial confirmation mess lies in politics, and not in overstated appeals to constitutional principle.
UPDATE: On the somewhat related question of whether there was a norm of requiring super-majority support for judicial confirmations, here's a post in which I address the "mythical history of nomination filibusters"