A reply to critics.
A reply to critics
A s I have argued, historical precedents support Senate Republicans in drawing a distinction in election-year Supreme Court nominations. When the president’s party controls the Senate, as it does in 2020, the Senate majority is well within its historic rights in confirming a nominee. It has done so 17 times out of 19. When the opposition party controls the Senate, as it did in 2016, the Senate majority is well within its historic rights in declaring that the two branches are deadlocked and the nomination should be held open for whichever party wins the national election. Only one out of ten presidents got a nominee through before an election in those circumstances. Given that my column has been cited by a number of Republican senators on Twitter and even by the White House press secretary in Tuesday’s briefing, there has been some pushback, though surprisingly little in any depth.
I can dispense up front with two of the common themes. One, I’m not arguing that historical practice is so deeply settled that it required Republicans to act as they did, merely that the pattern of past nominations supports their doing what they presumably wanted to do anyway. As my column noted, we assume that political actors will use the powers at their disposal unless some norm constrains them. Elections are supposed to have consequences — Senate elections just as much as presidential elections. Here, the precedents we have point in favor of Senate Republicans, not against them, so they should do what the voters elected them to do.
One species of this argument is Phillip Bump’s Washington Post column, which tries to reduce the number of nominations under discussion and then complain about “small sample size.” For example, Bump throws out every example before “the two-party era, which essentially began with Abraham Lincoln in 1861” (it properly began in 1856, which brings in the vacancy in 1860) and then also drops nominations made after the election — a somewhat incoherent stance, in part because some of those nominations were made after the election only because the Senate had been out of session, and in part because any case that considers election-year nominations to be distinct will apply doubly to nominations made in a post-election lame-duck session. But in any event, Bump seems to think that the burden is on Senate Republicans to show how precedent forces their hand, rather than simply to show that it favors their position, which it does.
Two, some have claimed that Senate Republicans just made up this standard after the fact and have contradicted themselves. This is undoubtedly true in the case of some Republicans such as Lindsey Graham. It is also the case for every Senate Democrat in every fight over the judicial nomination process as long as I can remember: They have no consistent principles whatsoever, and throw out whatever they believed the day before yesterday without even a look back. All the 2016 rhetoric about the Senate abdicating its constitutional duty and the Court needing nine justices has been memory-holed. Nobody has been on more different sides of these arguments than Joe Biden and Chuck Schumer. This is not even news, because everybody knows Democrats are like this.
That said, as my column noted, the historical distinction I draw was clear enough in multiple statements made in 2016 by Mitch McConnell and Senate Judiciary Committee chairman Chuck Grassley. It was not made up retroactively. They talked about there being a Republican Senate and divided government, and about no Senate since 1888 confirming an election-year nominee from an opposing-party president.
Michael Barone’s famous dictum is that all process arguments are insincere. He is right in one sense: Politicians of any party or faction will look for precedents that support their position. But then, I was a practicing lawyer for 23 years. When you cite precedents in court, the judge doesn’t care that the lawyers are citing them only because they are trying to win a case for their client. A precedent is a precedent. History is history. Facts don’t care whether you mean them.
What we can ask of politicians, and what commentators have a duty to do, is to take a consistent position over time and not just advocate diametrically opposite process arguments based on whatever happens to suit our ends at some particular moment. A majority of the Senate could, in theory, refuse to ever seat a Supreme Court nominee of an opposing-party president. That stance has been taken once, under Andrew Johnson, when congressional Republicans were using every tool at their disposal to dismantle the presidency over Johnson’s awful Reconstruction policies. History has judged them harshly for that, even revisionist histories that now sympathize much more with their case against Johnson’s policies.
On the whole, however, there is a strong norm against just refusing to ever confirm an opposing-party nominee. It remains to be seen if that norm survives — Clarence Thomas in 1991 was the last such nominee to get confirmed, and a few Republicans late in the 2016 campaign made noises about a long-term blockade if Hillary Clinton won. But it is widely recognized that this would be a genuinely dramatic escalation. The reason why it has been historically more acceptable to do so in an election year is simply that keeping the Court short-staffed for a few extra months is not like doing so for years and years. After all, the nomination process itself can sometimes take months, and the Court is off for three months in the summer anyway. So a norm that presidents’ nominees will be blocked in the Senate when (1) the opposing party has a majority and (2) it’s a presidential election year is a neutral norm that both sides should be able to live with in the long term.
A lengthier argument is made in Slate by Will Saletan, who responds directly to my column. Saletan argues, as to the ten cases I cite of election-year nominations during divided government:
There’s no clear pattern in the four cases that closely resemble today’s situation: those in which a vacancy occurred — and nominations or recess appointments were made — in an election year and before the election. In the first two cases, 1844 and 1852, the Senate blocked the president’s nominees. But in two more recent cases, it confirmed them. In 1888, a Republican Senate confirmed a nomination by Democratic President Grover Cleveland. In 1956, Republican President Dwight Eisenhower appointed William Brennan to the court during a Senate recess, and a Democratic Senate confirmed Brennan five months later. So when Obama nominated Merrick Garland to the court in 2016, rejection of such nominations wasn’t the norm. The ratio of confirmations to rejections was 50–50, and the trend — if you can call it that, in a sample of four — was toward confirmation. You could enlarge the sample, as the table does, to include a vacancy that opened at the end of 1843 (prior to the 1844 election), as well as three cases in which the vacancy or the nomination came after the election (1828, 1860, and 1880). But in two of those four cases, the president eventually got a nominee confirmed. So the ratio is still 50 –50. Or you could exclude the 1956 case, on the grounds that Brennan wasn’t confirmed until March 1957. But you could just as easily include Anthony Kennedy — a Republican nominee who was confirmed by a Democratic Senate in 1988 — which, again, makes the ratio 50–50.
I explained in my original column why I drew the distinctions I did. The Brennan nomination supports McConnell, because Eisenhower had to resubmit the nomination to a new Senate in his second term, which required him to first win reelection. Two other presidents (John Tyler and Rutherford B. Hayes) got nominees through in the lame-duck session, but only after their party won the presidential election (and in each case, they left a second Supreme Court vacancy open at the same time for their successor). I did not count Anthony Kennedy because he was not only nominated the previous year, he was Ronald Reagan’s third nominee for a seat that had been open since June 1987. Thus, holding the seat open would have meant the Court was short-staffed for more than a year and a half. Democrats had already delayed that nomination as long as was politically feasible at the time.
In dealing with the second set of nominations, under unified government, Saletan follows Bump’s approach and throws out lame-duck nominations without even an explanation. He then tries to reduce the sample even further to presidents who lost the popular vote:
Next, look at the presidents listed in the table. Only one, Benjamin Harrison, lost the popular vote while winning the Electoral College. His nominees were confirmed without opposition. The other 12 presidents who got election-year nominees through the Senate, including the three who did so in the face of significant opposition, had won the popular vote. Of the five presidents who have ever won elections while losing the popular vote, Harrison is the only one who got all his Supreme Court nominees through. The others who preceded Trump — John Quincy Adams, Rutherford B. Hayes, and George W. Bush—all suffered defeats or withdrawals. Trump would be the first popular-vote loser to get an election-year nominee confirmed since 1892, and he’d be the first ever to do it by ramming the nominee through in the face of opposition.
Leaving aside historical debates over which presidents actually lost the popular vote (which wasn’t reliably counted before 1828), Benjamin Harrison got a nominee confirmed in July of 1892, then another in December after losing the election. “One out of four similar prior presidents got two election-year nominees through” is hardly a great fact for Saletan’s position, especially since Bush never had a Supreme Court vacancy in his first term and got two justices confirmed for two vacancies in his second (after winning a popular majority), and the other two (Hayes and John Quincy Adams) faced a hostile Senate in their final year.
In any event, why should senators care if a president won the national popular vote? Senators are elected by states. Sixty current senators represent states where Trump won the popular vote in 2016, and 46 of those represent states where Trump won a majority of the vote, whereas only 26 senators represent states where Hillary Clinton won a majority. If Supreme Court confirmation battles turned on the president’s popular-vote mandate with senators’ constituents, that could only help Trump.
Finally, Saletan complains that “Every election-year nominee got a vote — at a minimum, on a motion to table — except Garland.” This is not entirely true; as my original column noted, three prior nominations were never voted on. John Tyler’s second nomination of John Spencer in 1844 was withdrawn after the Senate declined to act. Millard Fillmore’s lame-duck third nominee in 1853, William Micou, and Rutherford B. Hayes’s controversial 1880 nominee, Stanley Matthews, both saw their nominations expire without a vote. (Matthews was confirmed to the Court by one vote when James Garfield resubmitted his name in the next Senate.) It is also irrelevant. It was a big deal during the George W. Bush administration when a Democratic minority of the Senate prevented a floor vote on appellate-court nominations, but in 2016, it was clear enough to the voters that 53 of the 54 Republican senators (everyone but Mark Kirk, who publicly dissented) could be held accountable by the voters for opposing the Garland nomination. Holding the vote might have been a better way to go about delivering the message, but it was simply a formality.
What Senate Republicans have done in the 2016 and 2020 Supreme Court fights may not be commanded by history or entirely consistent with everyone’s public statements, but it is not some sort of unprecedented break with norms or tradition. It is the Senate exercising its power in a way that is entirely consistent with how the Senate has done so in past Supreme Court nominations for two centuries. That is the bottom line.