The death of Supreme Court Justice Antonin Scalia has unleashed a highly controversial issue in the midst of a highly peculiar Presidential election year. That an avowed socialist is staging a strong challenge to a mainstream Democratic candidate while an egotistical billionaire leads the Republican field over mainstream Republican candidates has made for an explosive and unpredictable campaign. Now, the death of the bombastic Scalia is presenting President Barack Obama with another opportunity to cement his influence on American politics for decades. It will not be easy as the President needs the “advice and consent” of the Senate, controlled by Republicans, to approve any appointment. Senate Majority Leader Mitch O’Connell has suggested that Obama should shelve his ideas for an appointment until the Presidential election is over. Cutting through the political hyperbole is difficult, but there are both historically unique and commonplace issues in this Supreme Court controversy.
Supreme Court nominees have often faced contentious confirmation hearings throughout history. There have been 160 official nominations to the Supreme Court (some nominees were withdrawn prior to official nomination). Of these, 124 have been selected to serve. That means over 25% are rejected when present to the Senate.
It didn’t take long for the Senate to reject its first nominee. George Washington appointed 11 justices, but his appointment of John Rutledge as Chief Justice was rejected 14-10. Rutledge was voted down primarily because he opposed the Jay Treaty, which averted a second war with Great Britain. Obviously, this rejection was based on political reasons and not Rutledge’s qualifications. James Madison’s nominee, Alexander Wolcott, was defeated by the largest percentage ever, 24-9. Wolcott was disliked because he was a customs inspector who enforced unpopular laws and lacked legal training.
Things cruised along relatively smoothly after Wolcott until poor John Tyler assumed the Presidency as the first non-elected President after William Henry Harrison’s death. Known as “His Accidency,” Tyler did not endear himself to his fellow Whigs as they kicked him out of the party over policy disagreements. Others questioned if Tyler should exercise his full presidential powers since he was not elected. The death of Supreme Court Justice Spencer Thompson led to six nominations over a period of one year, one month and 27 days before the Senate confirmed a replacement. As excruciating as that was, Tyler’s next nomination too even longer. That led to the lengthiest nomination process ever for a Supreme Court Justice. With the death of Supreme Court Justice Henry Baldwin on April 21, 1844, Tyler made three appointment in his last year in office, but none of them were confirmed. The next President, James Polk, had to submit two more names before Robert Grier was finally confirmed for Baldwin on August 4, 1846 – two years, three months and 14 days after Baldwin’s death.
After Polk, John Buchanan’s nominees split a highly divided country with close votes prior to the Civil War with one of them being rejected. Ulysses Grant would have a nominee rejected, and Grover Cleveland two. After that, no nominee was rejected until 1930 when Herbert Hoover nominated John Parker who was narrowly rejected 41-39, primarily because of opposition from labor unions and racial statements that he made as a gubernatorial candidate. Parker was the only nominee rejected between 1894 and when Abe Fortas withdrew as Lyndon Johnson’s nominee in 1968.
Fortas was the first nominee to be filibustered. That opened the floodgates to the modern era of contention. Two of Richard Nixon’s appointees were rejected: Clement Haynsworth and Harold Carswell. Haynsworth was rejected as retaliation by a Democratic Senate for the filibuster of Fortas by Republicans. Harrold Carswell was rejected because of his stances on women’s rights and racial issues, plus some questions about his judicial “mediocrity.” Next came the rejection of Ronald Reagan’s appointee Robert Bork over his political positions, and George W. Bush’s selection of Harriet Miers on the basis of her qualifications.
It’s clear that the current opposition to an Obama nominee will also be on politics, although legal qualifications may develop once a name is known. None of this should be a surprise because of the highly conflicted nature of American politics during these times.
What is disingenuous is the argument by many prominent Republicans that Obama should not make a nomination because he is a lame duck or that there is a precedent not to make a nomination during a Presidential election year. It is true that during Presidential election years, fewer Supreme Court Justices are nominated. However, that has more to do with Supreme Court Justices knowing that a resignation during a Presidential election year is going to lead to a huge political battle. The only resignations during a Presidential election year were the liberal Fortas in 1968, when Democrats controlled the Senate and White House; Oliver Wendell Holmes in 1932, who was pushed out by his colleagues because he was over 90 years old; Charles Hughes in 1916 who was nominated by the Republican Party to run for President against Woodrow Wilson; William Strong and Samuel Nelson, who resigned after the 1880 and 1872 Presidential elections; and Oliver Ellsworth, who resigned in 1796 before partisan politics had fully developed in Presidential politics.
The lack of Supreme Court nominations and confirmations during a Presidential election year has nothing to do with Presidential or Senatorial precedent. It is simply that, except for extraordinary instances, vacancies come about on the Supreme Court during Presidential election years because of a Justice’s death, not a resignation.
With Scalia’s death, the question will not only be who his replacement will be, but will the time needed for a confirmation break the record of over two years attained during the Tyler and Polk administrations.