Rules on Election-Year Nominations Not So Clear

Posted February 14, 2016 at 1:33pm
An Oct. 23, 1967 photo of Associate Justice Abe Fortas, of the U.S. Supreme Court. (AP Photo)
It’s only partly true that Fortas was rebuffed because the Senate decided that it was inappropriately late for Johnson to leave another mark on the court. (AP File Photo)

Only a couple of hours after Supreme Court Justice Antonin Scalia’s death was announced, Republicans had settled on their principal talking point: It had been more than eight decades since the Supreme Court got a new member in an election year, and there was no way the GOP was going to make an exception now.

That rationale is challenged not only by the facts, but also by the reality that the nature of partisanship in Congress, the qualifications the Senate demands of nominees, and the reasons for launching a judicial war in the Senate have all changed fundamentally in the past 80 years.

In other words, GOP senators — from Majority Leader Mitch McConnell and presidential candidates Ted Cruz and Marco Rubio on down — are asserting they’re comparing apples to apples, when in fact the situation that exists today is far different from those that presented themselves in 1988, 1968, 1940 or 1932.

And those cases were all different from one another, as well, in ways that might inform how not only the GOP, but also President Barack Obama and his Democratic allies might find either heartening or discouraging.


Vacancy Could Lead to Even More Gridlock

In the most recent example, almost three decades ago, the Democratic majority moved the final nominee of a lame duck Republican president, Ronald Reagan, through the Senate just a few weeks after he was chosen, and Anthony M. Kennedy was confirmed 97-0 just as the primaries were getting started in February 1988.

But that superficial bipartisan ease belied a fraught political atmosphere. In fact, many Washington veterans now recognize that time as the curtain raising on the era of reflexive partisanship and take-no-prisoners confirmation wars the Capitol lives with now.


Scalia’s Death Begins Partisan Battle, Shifts Court’s Balance

Reagan’s first pick for the vacancy, Robert H. Bork, was rejected after a 108-day battle in which the GOP’s declarations — that custom should prevail and the president should be able to seat virtually anyone he wanted — were ultimately trumped by the Democrats’ unprecedented assertions that a nominee’s ideology was fair game for debate and Bork’s vision was far, far outside the conservative mainstream.

When that bilious fight was followed with Reagan’s second choice, Douglas Ginsburg, having to drop out — for the then-unpardonable sin of past marijuana use — the exhausted Capitol was willing to welcome most anyone. And Kennedy, then a pretty obscure federal appeals court judge in California, had a vague enough paper trail that neither party had much to either crow or cry about.

(Of course, one other lesson from that election year arrival, especially for the Republicans, is that due diligence is always warranted even if that means significant delay. Kennedy has turned out to be the least doctrinaire and the least predictable of any of the current justices chosen by GOP presidents. Some conservatives still chafe that, in the interest of haste, Reagan squandered a chance at giving the court an even more emphatic push to the right than he did by getting Scalia on board and elevating William H. Rehnquist to Chief Justice.)

Two decades before, Lyndon B Johnson was several months past his decision not to seek reelection when Chief Justice Earl Warren announced his retirement. It is true a filibuster stopped LBJ from filling the most prominent vacancy in the judicial system with one of his most loyal friends, Justice Abe Fortas.

But it’s only partly true that Fortas was rebuffed because the Senate decided that, with only seven months left in his presidency (15 percent of the term to which he was elected in 1964) it was inappropriately late for Johnson to leave another mark on the court. That was the reasoning cited by some Republicans and conservative southern Democrats, a coalition that often controlled the Senate but has no parallel now.

But general disdain for Johnson was the underlying motive for the group, one of the leaders of which was Strom Thurmond of South Carolina. People now use the “Thurmond rule” label to describe the unofficial but accepted expectation that lame duck presidents will be blocked by the opposing party from adding anyone, anywhere on the federal bench in the final six months of an administration.

All that aside, the Senate did not delay Fortas to death. Instead it moved ahead with confirmation hearings and then began floor debate, even after it was revealed Fortas had been augmenting his court salary with a lucrative teaching arrangement secretly underwritten by a group of Wall Street and corporate executives. It wasn’t until Oct. 1, a month before election day 1968, that the nomination was killed by a cloture vote.

The situation three decades before that was much less dramatic. Justice Pierce Butler died in November 1939, and president Franklin D. Roosevelt waited two months before nominating as his successor Attorney General Frank Murphy on Jan 4, 1940.

Whatever senatorial or Republican anger was focused on the Democratic president at that time — because of his contemplation of a third term, the New Deal, or his bold plan for shielding that social safety net by packing the Supreme Court with like-minded justices — it did not manifest itself for more than a senatorial instant. Murphy was confirmed and took his seat in the court less than two weeks later.


Vacancy Could Lead to Even More Gridlock

For Obama and the Senate, maybe the most informative — even aspirational — semi-parallel of the past century was in 1932. Republican Herbert Hoover was starting to run for reelection and so wasn’t a lame duck the way this president is now.

But he was already pretty politically weakened. And he was dealing with an opposition Senate populated by Democrats, each ready to stand in his way at any opportunity in hope of leaving the nation’s problems for a successor of their party.

And then he had to confront the retirement of Oliver Wendell Holmes Jr. — another towering figure in the court’s history, known for his keen intellect, rhetorical punch and 30-year tenure just as Scalia is being eulogized now.

Whether for long-range political calculations or not, Hoover responded by nominating a successor of the opposing party — albeit someone who was already something of a celebrity in legal circles: Benjamin N. Cardozo, who as a judge in New York’s highest court had written a collection of transformative opinions on civil and criminal law.

Cardozo was confirmed on a unanimous voice vote, with Democrats saying at the time (and historians since) that the nomination was one of the most important moves of Hoover’s Depression-crippled administration.

There’s no apparent pop culture jurisprudential hero waiting in the wings now, however, complicating Obama’s path to a confirmation miracle this year.

Related:


Podcast: Supreme Court Cases in Question After Scalia’s Death


Scalia’s Legacy: Polarizing Figure Known for Fiery, Colorful Opinions


D.C. Circuit Judges Top List of Potential Supreme Court Picks


Slideshow: A Life in Washington, Scalia Dead at 79


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