Getting the Senate’s responsibilities on Supreme Court nominations right

Michael Gerhardt is Samuel Ashe Distinguished Professor in Constitutional Law at the University of North Carolina at Chapel Hill, Scholar-in-Residence at the National Constitution Center, and Visiting Scholar at the University of Pennsylvania Law School. He served as Special Counsel to Chairman Patrick Leahy and the Senate Judiciary Committee for the nominations of Justices Sonia Sotomayor and Elena Kagan to the U.S. Supreme Court.

One hundred years from now, people will look back upon the year 2016 in wonder. 2016 was the eighth and final year of the presidency of Barack Obama, the first African American elected to the nation’s highest office. 2016 was the year of a presidential election, possibly destined to be historic with the election as president of either the first woman or the first person to come directly from the world of business and with no prior experience in public office. 2016 was the year in which, in mid-February, Justice Antonin Scalia, the Court’s most passionate conservative, died, just shy of completing his thirtieth year on the high Court. It was also the year in which the Senate leadership declared, days after Scalia’s passing, that, because it was a presidential election year, the American people should make the choice about what kind of Justice should next be appointed to the Court and the Senate was not therefore going to consider any nominations the president made to fill the Court’s pending vacancy. That threatened intransigence held the prospects that any nomination made by the president was dead upon arrival, no matter how strong or good, and that the Court would likely continue to have only eight, rather than its full complement of nine, Justices for the foreseeable future. Whatever happens, the American people will undoubtedly look back and ask why. Why did the Senate do what it did? What lessons did 2016 teach us about Supreme Court appointments? What kind of precedent did the Senate create? What principles guided the Senate? Will it be a precedent subsequent generations will want to follow or reject?

Both the president of the United States and the chairman of the Senate Judiciary Committee have each already weighed in, on SCOTUSblog and elsewhere, on some of these questions, and I am honored to have a chance, in the same forum, to consider these, too. While no one, of course, knows exactly what will happen to the Supreme Court vacancy in 2016, we already know some things. We know what the Constitution says, and we know what’s happened in the past. Clarifying what we know about the Supreme Court appointment process is important for holding our leaders accountable. Clarifying the record will help subsequent generations understand the principles at stake. What will matter to them is not just what we did but also why we did it.

First and foremost, we know the Constitution provides that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint [Justices] to the Supreme Court.” While the Constitution vests the authority over Supreme Court appointments to national political leaders, there is nothing in the Constitution’s language expressly declaring that the process for appointing Justices is suspended, lapses, or is delayed at any particular point in time. It’s clear, at least from the language in the Constitution, that for as long as someone is president, the president retains the authority to make Supreme Court nominations (presuming there are vacancies). Nor is there anything within the language of the Constitution indicating that the Senate’s authority over Supreme Court appointments is suspended or functions differently depending on the time of the year.

Much of the public discussion, in the days since Scalia’s passing, has been about what historical practices can tell us about the president’s and the Senate’s respective authorities over Supreme Court appointments, though I think these practices are clear. To begin within, not a single president has ever refused to make a nomination to fill a Supreme Court vacancy, regardless of its timing. No president has ever abdicated this authority, not even when they were lame ducks. In fact, six lame-duck presidents have made six Supreme Court appointments. Perhaps the most famous of these was John Adams, who, despite having been trounced in the 1800 presidential election by his rival (and vice president) Thomas Jefferson, nominated John Marshall as Chief Justice just a few weeks before Jefferson’s presidential inauguration. Though he despised Marshall, Jefferson never questioned Adams’s authority to make the appointment.

Only four presidents have not made any Supreme Court nominations (and not because of the proximity of presidential elections). Two presidents, William Henry Harrison and Zachary Taylor, died prior to having the opportunity to make any Supreme Court nominations. Andrew Johnson never had the chance, because Congress enacted a law abolishing two of the Court’s seats prospectively to prevent Johnson from filling either of them if either or both of their occupants died while he was president. Scalia’s seat is still vacant, and the law creating it remains in full force. And then there’s Jimmy Carter, who is the only president to complete a full term in office without the opportunity to make a Supreme Court nomination.

So, that means, of our forty-four presidents, forty have had the opportunity to make Supreme Court appointments, and thirteen of those, nearly a third, have appointed nineteen Justices during presidential election years. (Combined with lame-duck presidents who made Supreme Court appointments, the total comes to nineteen presidents, or nearly half of all presidents, who have made Supreme Court appointments during or right after presidential elections.) The first president to appoint Supreme Court Justices in presidential election years was George Washington; he made two in 1796, a time that many scholars consider important because our leaders were all framers of or intimately familiar with the drafting and ratification of the United States Constitution. Five presidents in the twentieth century – William Howard Taft, Woodrow Wilson, Herbert Hoover, Franklin Roosevelt, and Dwight Eisenhower – made successful Supreme Court nominations in presidential election years. Indeed, Wilson made two Supreme Court appointments in 1916.

What about other evidence? Senate leaders and some pundits point to three historical events arguably supporting their claim that the Senate shuts down the Supreme Court confirmation process in presidential election years. First, Senator Chuck Grassley, the chair of the Senate Judiciary Committee, has noted that the last time a Supreme Court nomination was both made and confirmed in a presidential election year was 1932. This is true, but it hardly constitutes a tradition. Indeed, the Senate confirmed Frank Murphy in January 1940 and Anthony Kennedy in 1988, while it confirmed William Brennan in 1957, after Eisenhower had named him as a recess appointment and nominee to the Court in 1956.

Second, some people attach importance to the fact that in 1968 President Lyndon Johnson nominated Justice Abe Fortas to replace Earl Warren as Chief Justice and Homer Thornberry to take Fortas’s seat, but the Senate confirmed neither. Fortas ended up withdrawing his nomination a month before the presidential election, and the Senate never voted on Thornberry’s nomination. The critical facts, which help to complete the story, are that the Senate actually held hearings – twenty-two, in fact – for the two nominations and Fortas was thwarted by a successful filibuster, which was based not on the fact it was an election year, but rather that Fortas, who had been confirmed as an Associate Justice a few years before, had committed several serious ethical breaches while on the Court.

A third fact cited by some people is the Senate’s slowing down and only occasionally confirming fewer lower-court nominations in presidential election years. While there is some truth to this, it hasn’t translated into the realm of Supreme Court appointments. Indeed, as Geoffrey Stone of the University of Chicago Law School has observed, “the Senate has confirmed 91 percent of the 129 Supreme Court nominees it has considered. In the last 60 years, the Senate has confirmed 89 percent of the 28 Supreme Court nominees it has considered.” When one considers the various factors, which influenced Senate votes on Supreme Court nominations, Stone found that, “in the last 60 years 19 of the 20 most moderate Supreme Court nominees have been confirmed by the Senate.” Moreover, “even when the Senate was controlled by the opposing party, in the last 60 years every one of the eight nominees who was perceived to be both qualified and reasonably moderate was easily confirmed.”

There is, in short, no historical support for the claim that the Senate has a tradition of shutting down the Supreme Court appointment process in presidential election years. The tradition is the opposite, for the Senate to consider Supreme Court nominations, no matter the timing, and actually to confirm nominees when they are moderate and well qualified.

The Constitution is not a suicide pact. It does not relieve our leaders of their powers and does not cease to have effect at certain times, even during presidential elections. President Abraham Lincoln made five Supreme Court nominations during the Civil War, Wilson made two during World War I, and Roosevelt made three during World War II. Hoover made three during the Great Depression.

It is, however, worth remembering that our past does not bind us. The past illuminates what is constitutionally permissible but not what should be done.   Past choices are not constitutional rules. Our leaders still must take responsibility for their own decisions, rather than pass them off on their predecessors, and the public’s job is to hold them responsible. In doing that job, we should keep in mind Daniel Patrick Moynihan’s admonition, “You are entitled to your opinion. But you are not entitled to your own facts.” The facts about Supreme Court appointments are easy to find; our leaders don’t need to make them up.