For the second time in four years, a sitting Supreme Court justice has died during a presidential election year. Justice Antonin Scalia died Feb. 13, 2016, and his friend Justice Ruth Bader Ginsburg died Sept. 18, 2020. The question is how the president and Senate will approach this new vacancy.
The appointment process, including a nomination by the president and consideration by the Senate, follows the same basic pattern most of the time. But it’s a mistake to think it must always happen that way. The Constitution gives the Senate not only the power of “advice and consent,” but also authority to determine its own “rules of proceeding.” In other words, the Senate decides for itself how to handle nominations, and it has handled Supreme Court nominations at least a dozen different ways, depending on the circumstances.
This will likely surprise some people. Both supporters and opponents of a presidential administration, or of a particular nominee, often cite the process followed for this or that previous nomination as if it were a legally binding precedent. It isn’t. No two Supreme Court vacancies, or nominations to fill them, are exactly alike.
Ultimately, the president and the Senate must make judgments about the best way to handle vacancies when they happen. That might resemble past nomination scenarios, but it might not.
Democrats Have Made Themselves Clear
Democrats have made suggestions over the years. In 1992, a presidential election year with a divided government and a Republican president, the Judiciary Committee chairman said, “Once the political season is underway — and it is — action on a Supreme Court nomination must be put off until after the election is over.” If a Supreme Court vacancy occurred, the president should not make a nomination, and if he did, the Senate Judiciary Committee should not consider it. No Democrat raised any doubts, questions, or reservations about this advice.
In December 2001, also with a Republican president, Yale University law professor Bruce Ackerman wrote that “when sitting justices retire or die, the Senate should refuse to confirm any nominations offered up by President Bush.” He made that argument not in the last year of the president’s second term, but in the first year of the president’s first term.
A month later, former White House counsel Abner Mikva wrote in the Washington Post that “the Senate should not act on any Supreme Court vacancies that might occur until after the next presidential election.” He would keep the Supreme Court at least one justice short for three years. There’s no record that any Senate Democrat, left-wing group, or liberal academics or commentators voiced any objection.
Four years later, as Democrats were filibustering Bush nominations to the U.S. Court of Appeals, Minority Leader Harry Reid (D-Nev.), said the Senate has no obligation to consider, let alone vote on, a president’s nominations. Once again, there was nothing but silent acquiescence from the left.
What Happened in 2016?
So when Scalia died in February 2016, Democrats had repeatedly endorsed putting the appointment process on hold, including in a presidential election year with a divided government. On Feb. 23, 2016, Judiciary Committee Republicans sent a letter to Majority Leader Mitch McConnell (R-Ky.), that “this Committee will not hold hearings on any Supreme Court nominee until after our next President is sworn in on January 20, 2017.”
This was before President Barack Obama had made any nomination, and the letter specifically noted that there was a “divided government” in 2016, with different parties controlling the nomination and confirmation stages of the appointment process. In addition, the reference to “our next President” was literally true because the 2016 election was certain to produce a new occupant for the Oval Office.
You might think that those who advocated putting the process for filling a Supreme Court vacancy on hold for years would not object to doing so for months. You’d be wrong. Knowing that the Senate would not consider his pick and that Democrats in the past had said it was OK for the Senate not to do so, President Barack Obama still nominated Chief Judge Merrick Garland of the D.C. Circuit to the Scalia vacancy on March 16, 2016.
Days after Scalia’s death, a group of 33 law professors wrote to Obama saying that “the Senate’s constitutional duty to ‘advise and consent’ — the process that has come to include hearings, committee votes, and floor votes — has no exception for election years.” Signers included liberal scholars such as Erwin Chemerinsky at the University of California at Irvine, Peter Edelman at Georgetown University, Kermit Roosevelt at the University of Pennsylvania, and Alan Morrison at George Washington University.
A few weeks later, another group of 16 prominent academics wrote Obama insisting that it is “standard practice when a vacancy occurs on the Supreme Court to have a president, whatever the stage in his term, to nominate a successor and have the Senate consider it.” The Senate may reject a nomination, they wrote, but must do so after Judiciary Committee hearings and “full debate and votes on the Senate floor.” These signers included Chemerinsky, Pamela Karlan at Stanford University, Geoffrey Stone at the University of Chicago, and Harold Koh at Yale.
GOP Leaders Should Proceed
Now we have another Supreme Court vacancy in a presidential election year, this time with no divided government and the possibility that the incumbent president will continue in office. If Democrats’ position in 2016 that circumstances do not matter was correct, and the Senate must process a president’s nominations even in a presidential election year, then it supports filling the Ginsburg vacancy now. If Republicans’ position in 2016 that circumstances do matter was correct, then it also supports filling the Ginsburg vacancy now because those key circumstances are different today than in 2016.
It all can get a little confusing, but the bottom line is that the Senate’s responsibility of advice and consent begins with determining the best way to handle each nomination. Past scenarios and situations can be useful, and perhaps even relevant, but they are not binding.
Democrats have advocated different sets of rules for handling nominations of Democrat and Republican presidents, and therefore, their lectures about what to do now are not exactly credible. The Senate would be on solid ground to proceed with the confirmation process for filling the Ginsburg vacancy.