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What Comes Next

February 14, 2016

Supreme Court Justice Antonin Scalia apparently died in his sleep on Friday night at a vacation resort in rural Texas. After he missed breakfast, his room was checked and his body was found. At 2:45 p.m., according to the Los Angeles Times, a priest was sent for to deliver last rites.

Within just a few hours, Senate Majority Leader Mitch McConnell declared that President Obama should forego nominating a replacement, leaving the vacancy for the next president. By the time of the Republican presidential debate on Saturday evening, the standard Republican position was that, as Senator Ted Cruz put it, “we have 80 years of precedent of not confirming Supreme Court justices in an election year.” Or, as Senator Marco Rubio insisted, “it has been over 80 years since a lame duck president has appointed a Supreme Court justice.”

This is a mighty piece of sophistry, even by the standards of this year’s Republican presidential campaign.

The 80-year old event to which the Republican line refers was the nomination and confirmation of Benjamin Cardozo in 1932 – which is also the year that Franklin Roosevelt took the presidency from Herbert Hoover.

But here’s the problem – Herbert Hoover was not a “lame duck” when he nominated Cardozo, or when Cardozo was confirmed. Hoover ran for and won the Republican nomination, losing big to FDR in November 1932. Justice Oliver Wendell Holmes, Jr., resigned in January 1932, and Justice Cardozo took his seat on the Supreme Court in March.

Justices William Brennan, Jr., was also nominated and confirmed in an election year. Justice Sherman Minton notified President Eisenhower in September 1956 of his intention to retire, and Brennan took the seat the next month.

Justices Lewis Powell, Jr., took office in an election year, 1972, but he was nominated in October 1971 and confirmed in December, to fill the seat vacated by Justice Hugo Black in September 1971.

When Justice Powell left the Court in 1987, President Reagan nominated Robert Bork to replace him, then, after Bork was defeated in the Senate, nominated Douglas Ginsburg, who ultimately withdrew after his marijuana smoking past came to light. Reagan nominated Anthony Kennedy in November 1987, and Kennedy was confirmed and took his seat in February 1988.

In other words, four justices have taken their seats in election years, from Cardozo to Kennedy, during the time period invoked by Republicans. Republicans disqualify Kennedy and Powell because the vacancies and nominations occurred before the election year. They disqualify Powell and Brennan because the presidents who nominated them were not “lame ducks.” But of course neither was Herbert Hoover when he nominated Cardozo.

In support of their argument, Republicans refer to Justice Abe Fortas, who was nominated by President Johnson to succeed retiring Chief Justice Earl Warren in June 1968. Johnson was a true lame duck, having declined to run for re-election. The seat was technically not vacant, since Chief Justice Warren was staying on pending appointment of his replacement.

But the notion that Justice Fortas was not confirmed out of concern that the appointment should be made by President Johnson’s successor is pure fiction. Democrats held 64 seats in the Senate at the time. Richard Nixon was by then the clear front-runner for the Republican nomination, and Robert Kennedy had been shot and killed, leaving Hubert Humphrey the probable nominee. Although the general election race later tightened considerably, at the time of Johnson’s nomination of Fortas in June, it seemed likely that Nixon would beat Humphrey. Even late in September, when the confirmation debate occurred, Nixon was distinctly ahead of Humphrey in the polls. The notion that a heavily Democratic Senate rejected Fortas in order to leave the chief justice vacancy for the next president is ridiculous.

In fact, Fortas was defeated because of ethical lapses during his tenure as an associate justice. His continuing political relationship with Johnson – Fortas remained one of Johnson’s most important advisers while Fortas sat as a justice – and his receipt of a then-considerable $15,000 speaking fee paid by corporate interests did him in.

To be clear, then: there is not, and there never has been, an American tradition of leaving election year Supreme Court vacancies for the next president.

On the other hand, Republicans are proposing to leave a Supreme Court seat vacant for a minimum of a year. Even if the next president nominates Justice Scalia’s successor on Inauguration Day, and even if the next Senate confirms that nominee with stunning speed, the new justice won ‘t be seated for more than a year from now.

Such a protracted vacancy is extremely rare. The only modern vacancy of that duration was the interim between Justice Fortas and Justice Blackmun, from May 14, 1969, to June 9, 1970. That vacancy was prolonged not be design, but by President Nixon’s unsuccessful nominations of Harrold Carswell, then Clement Haynsworth, before winning confirmation for Justice Blackmun.

The last time before that a Supreme Court seat was vacant for a year or more was during the Civil War – from the resignation of the Southerner John Campbell on April 30, 1861, until the seating of David Davis on October 17, 1862. In that case, the delay was Lincoln’s, not the Senate’s – Lincoln was resisting the pleas of advisers to repay his 1860 victory with a plainly partisan award of a judicial seat to the political engineer of that victory, an Illinois trial court judge with no substantial appellate experience. He successfully filled two other vacancies while the Campbell seat remained open.

In short, no matter how you look at it, the Republican argument that leaving a vacancy for the next president would honor “precedent” or “tradition” is utter nonsense. Unfortunately, given Senate Republicans’ nearly pathological hatred for the President, it seems unlikely that they will relent. This is an unforced Republican error, and Democrats should take every advantage of it.

First, President Obama should nominate a moderate, maybe from the South or the Midwest, preferably a Republican, and ideally a Latino or Asian-American. Against the protests that Obama should push for a solid liberal, I would just point out that substituting a justice even just a skosh or two to the left of Justice Kennedy for Justice Scalia, the most partisan conservative justice to sit on the Court in generations, would produce a sea change in Supreme Court jurisprudence.

Then Democrats in the Senate should get on their highest of high horses about the unprecedented indignity of the Senate majority’s refusal for months on end to vote on the nomination: weekly press conferences and speeches on the Senate floor, complete with lessons in American history and civics.

Hillary Clinton and Bernie Sanders should unite in the selfless cause of denying themselves the opportunity to pick Justice Scalia’s successor, while less selflessly dwelling at length on the difference between Democratic presidential candidates who want the government to operate as constitutionally intended, and the Republican presidential poseurs.

When all that doesn’t work, Senate Democrats should strategically select a couple of bills important to Republicans but not so much to the rest of the country, and subject them to relentless filibusters – the old-fashioned kind of filibuster, where senators take the floor for days on end, in this case to denounce the Republican refusal to carry out its constitutional duty to advise and consent.

The Supreme Court is important, and Republicans’ unprecedented stand against a nominee not yet nominated must be shamed for the sake of history. But in a stroke of luck, Democrats have been handed a three-fer: a Supreme Court vacancy, an opportunity to turn the seven-year Republican stone wall into a victory in the eyes of history, and an opportunity to hold Republican presidential candidates to their own words on Saturday night.


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