Justice Antonin Scalia died on February 12th 2016. He had served 29 years on the Supreme Court, and many years on lower courts (Biography. com Editors). The death of Scalia left an associate justice chair open on the Supreme Court. President Obama nominated an individual to fill the vacancy left by Scalia, but this was strongly opposed by Republican Senators. Republican Senators have vowed to block an Obama nomination from receiving a vote or even a hearing.
This paper will address the senate’s attempt to block a nomination by the president, whether this is unprecedented and constitutionally legal, and the effect this will have on the court and possible court decisions. Sonia Sotomayor and Elena Kagan have already been nominated and confirmed under the Obama administration (Carroll, Lauren. 2016). This would be President Obama’s third Supreme Court seat to be filled during his tenure. First, one must understand the importance of the court.
The Supreme Court is one of the three branches of government and possesses checks and balances over the Executive and Legislative branches, it has precedent over all courts within the United States jurisdiction, and over issues of the constitutionality of laws and executive actions (A Brief Overview of The Supreme Court). Presidents will nominate individuals who possess similar political ideologies in order to protect their political actions, and influence politics long after they have left office. When it comes to the argument of precedent and the confirmation of justices during election years the parties are deeply divided.
Article II, Section 2, Clause 2 of the United States constitution states, “The President… shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States…” (Carroll, Lauren. 2016) This clearly defines the power of both institutions. The President nominates and the Senate advises and votes on whether the justice should sit. However, politics can find it’s way into all aspects of the government, especially for a court that is so important.
Neither party can agree on the most recent confirmation of a justice during an election year, citing two different instances. Republicans are citing nominations that had a multitude of other issues than just the fact that it occurs during an election year. Democrats want to look at the confirmation of Anthony Kennedy in 1988, while Republicans choose to recognize the 1932 confirmation of Benjamin Cardozo as the last election year nomination. Democrats believe Anthony Kennedy was the last election year vacancy on the court.
Anthony Kennedy was nominated by President Reagan on November 12th, 1987 to fill the seat vacated by Lewis Powell (Aisch, Gregor, et. al, 2016). Regan had already nominated two individuals, Bork and Ginsburg, for the position before Kennedy. Bork was too far right to be confirmed by the Senate, and lost on a vote of 58-42. Ginsburg’s admission to the use of Marijuana led to his withdraw from consideration (Greenhouse, Linda. 1987). President Reagan, facing a Democratic Senate, knew that he needed to appoint an individual that would appeal to everyone. Kennedy being a moderate candidate that leaned right seemed like the perfect fit.
However, Senator Grassley from Iowa held very strong beliefs on the issue, stating that, “’There’s been a basic compromise of principle that’s not satisfying to me, but I suppose I’m resigned. There’s a practical aspect. ” (Greenhouse, Linda. 1987) That aspect being getting a slightly conservative justice on the court. When asked if Reagan had other options than compromising Grassley replied, ”If I were President of the United States, I think I’d figure one out. ” (Greenhouse, Linda. 1987) Political consultant Richard Viguerie called the Kennedy nomination, ”a total surrender to the left. (Greenhouse, Linda. 1987)
Kennedy went on to vote and was confirmed unanimously 97-0 with Senator Grassley and McConnell affirming. Democrats point to the Kennedy confirmation as the most recent Supreme Court confirmation during an election year. Republicans argue that this is not relevant due to the fact that the seat became available during late 1987, and not during an election year. Marco Rubio states, “It doesn’t really matter what they’ve done, what Reagan did back in ’87. It was in ’87 when he nominated him, so obviously it was still earlier in the year.
If this was November, October or September of last year where the president had more than a year left in office, then perhaps this would be a different discussion,” (Coleburn, Christina. 2016) Republicans are arguing that there should be a cut-off of the president’s constitutional power when there is less than a year left in his presidency. This is absurd, and makes little to no sense. Why would the president’s powers change at the one-year mark? They wouldn’t, Republicans make this argument in order to appear as if following precedent when in reality they made up and manipulated the one-year rule for their own gain.
Also, we see that Democrats are willing to have hearings and confirm nominees to the Supreme Court. The Democrats may not confirm extremely conservative candidates, but they are willing to compromise and confirm someone who is moderate, such as Kennedy. This is extremely important in comparing to today due to the fact that Democrats controlled the Senate and confirmed a moderate conservative, and did not refuse to complete their duties until the election was finished. Lastly, one must analyze the comments made by Senator Grassley as these stances have changed in the current situation.
He thought this to be a compromising decision to the Republican party, but held that it served a purpose. President Obama has put forth a very moderate liberal for consideration of the Senate. However, Republicans, Grassley included, refuse to hold a hearing or vote on any nominee (Lerner, Kira. 2016). This seems to be very hypocritical. Democrats were happy to confirm a moderate conservative, because it was a compromise between the two parties. Republicans should jump at the opportunity to confirm a moderate candidate as well. Kennedy was seen as a total surrender to the left, but why is there such opposition now for a moderate liberal.
This shows that Republicans are unwilling to budge because they control the Senate. They will continue to press that it is for the American people, but, when analyzed, their actions are extremely hypocritical. Republicans disagree with Democrats when it comes to the last election year nomination. Republicans assert that Benjamin Cardozo was the last successful nominee to be confirmed in an election year. Cardozo was nominated and confirmed during President Hoover’s last year of his first term. The Senate approved Cardozo on a unanimous vote in 1932 (Huebner, Timothy S. 2016).
Cardozo was nominated by President Hoover to replace Justice Holmes. As noted by the New York Times, this occurred during the Great Depression. During this unstable time for the country the Senate preformed their duties of confirming a nominee to the Supreme Court during an election year, and did so unanimously. (Huebner, Timothy S. 2016) Republicans want to look to this nomination, and the failed nominations of Thornberry and Fortas, as an example of precedent being set for the last 80 years that vacancies on the Supreme Court during election years ought not be filled.
However, if Scalia died in December, we would still see Republicans demanding that the confirmation wait. The policy and stance chosen by the party will differ based on circumstances. Interestingly, even though these were two election year confirmations both passed the Senate with a unanimous vote. This shows that the current situation is the most contested one so far. In 1987, the Democrats did not refuse to appoint a nominee, and voted unanimously voted to confirm the nominee. This shows even further that McConnell’s stance on precedent is very weak.
Republicans will also point to the failed appointments of Thornberry and Fortas in 1965. Fortas was currently sitting on the Supreme Court as an associate justice when Chief Justice Warren informed President Johnson about his retirement. (Senate Historical Office) As most individuals are aware, when an associate justice position becomes open the president can nominate any individual to fill the vacancy and they must receive at least 51 votes for confirmation (Petersen, Lilli. 2016). However, if the Chief Justice position becomes available, the president has two options.
Either nominate an individual not currently sitting on the Supreme Court to take the Chief Justice position, or elevate a current justice and nominate an individual to take the vacated associate justice seat. President Johnson took the less common option of elevating a sitting justice. Johnson chose to nominate Fortas for elevation. This was seen as cronyism by many due to the extremely close relationship the two maintained (Senate Historical Office). With this decision, Fortas’s former associate seat would become available.
Johnson nominated Appeals Court Judge Homer Thornberry. Fortas was given hearing in which very influential information was exposed on the justice. Fortas regularly attended White House staff meeting, briefed the president on the court’s private deliberations, applied pressure to senators that opposed the Vietnam War, and received a private stipend to teach an American University summer course (Senate Historical Office). Add in the fact that he was extremely liberal, Jewish, and was a personal friend of the president that would fight to uphold his policies.
There are a multitude of reasons not to confirm Fortas’s elevation other than the fact that it was an election year. “He also wanted the Court to uphold the compromise he had reached with Catholics on funds for parochial schools, as well as his consumer, health, and environmental legislation. ” said former domestic policy advisor Joe Califano (Zeitz, Josh. 2016). Republicans point to this as precedent, but, as one can see, Fortas should not have been confirmed for a plethora of reasons.
Also, Fortas was recommended by the Senate Judiciary Committee, and sent to the floor for debate. This is a step Republican’s refuse to take. Lastly, Chief Justice Warren’s resignation was contingent upon his successor being confirmed (Zeitz, Josh. 2016). Since Fortas was not confirmed before Johnson’s term was over Chief Justice Warren did not retire. The Senate knew in this instance, that a vacancy would never occur on the court so there was no immediate need like there is today.
Republicans tie in the failed nomination of Thornberry in as an additional example of precedent. However, this is a very loose argument. The Thornberry nomination did fail, but not because of a block or move by the Senate. Thornberry was nominated to assume Fortas’s vacated associate justice seat. However, with Fortas not been confirmed for elevation this meant that there was no open associate justice seat for Thornberry to fill. The Republicans want to look at this as another failed nomination, when in reality it is just circumstantial.
There was never a vacancy on the court, and they only point to examples of seats becoming available during an election year, but not confirmations that occur during an election year. One can see the bias that Republicans are placing in this current situation in an attempt to justify blocking a nominee. This is extremely political, and the interesting fact is that the parties would hold the exact opposite viewpoints if Mitt Romney had won the 2012 election and was nominating a conservative justice to replace Scalia.