It was an election year. A Supreme Court justice appointed by the most conservative Republican president in history had just died. The President, the most progressive Democrat to ever hold that office, now had a chance to begin to reshape the Supreme Court. But the president was up for reelection, with no guarantee he would be reelected. Indeed, in the previous 76 years only two presidents had been elected to two consecutive terms.
The President nominated a famous but controversial public interest lawyer to the Court. He was known for taking on insurance companies, powerful public utilities, and banks. His book, Other People’s Money and How the Bankers Use It, hardly endeared him to Wall Street. On top of all this, he was an ethnic minority and the first person of his background to be nominated to the Court.
The Republicans in the Senate were furious. They hoped the nomination would fail, and they held endless hearings trying to undermine support for this man they accused of being a radical, a socialist, and on top of that, “greedy.” But no one in the Senate thought the President should not fill a vacant seat on the Court in an election year. After a four month confirmation process—the longest in our history—the confirmation took place.
The year was 1916. Exactly a hundred years ago. The President was Woodrow Wilson. The nominee was the great progressive lawyer Louis D. Brandeis—the first Jew on the Court at a time of rampant anti-Semitism—who went on to be one of the most important and influential Justices in our history.
The death of Justice Antonin Scalia has led to political posturing by leaders on the process of his replacement. Senator Ted Cruz has argued that President Obama has no right to nominate a successor to Scalia, and the Texas politician—and presidential hopeful—has promised to filibuster any nomination. Senator Majority Leader Mitch McConnell has vowed to prevent the nomination from reaching the floor.
These responses, while perhaps politically predictable, run counter to the entire history of the United States. The Brandeis confirmation took place five months before a presidential election, in June 1916. During the long confirmation process—from January to June—no one argued that President Wilson should not have sent a nomination forward, or that the Senate should not have acted on it. In the end, the opponents of Brandeis failed to stop his confirmation. One of those opponents, ex-President William Howard Taft, later came to admire and respect Brandeis when Taft himself joined the Court.
Brandeis is hardly the only justice to be nominated and confirmed in an election year. In January 1796 George Washington nominated Samuel Chase to the Court. By this time Washington had indicated he would not run for a third term, but no one in the Senate suggested the nation needed to wait more than a year to replace Justice John Blair, who had recently retired.
Between January 1844, an election year, and February 1845, President John Tyler nominated four men to a vacant seat, but none were confirmed. This was not a result of Tyler being in the last year of his term or his lame duck status after November 1845. Rather, the Senate simply did not think his nominees were up to the job. But in mid-February 1845—with less than a month to go in his lame duck term—President John Tyler nominated Samuel Nelson to the Court, and he was confirmed in ten days.
In December 1851, eleven months before the next presidential election, Millard Fillmore sent the name of Benjamin R. Curtis to the Senate, and he was confirmed nine days later.
In December 1880, with only a few months to run in his term, the lame duck President Rutherford B. Hayes nominated William B. Woods to the Court. The Senate quickly confirmed him, with no one arguing that the seat should remain open for president-elect Garfield to fill. In July 1892, four months before the 1892 election, the Senate confirmed Benjamin Harrison’s nominee George Shiras. Harrison then lost his bid for reelection in 1892, but in February 1893, less than two weeks before he was to leave office, the Senate confirmed his last nominee, Horace Jackson. In March 1912, less than eight months before the presidential election, the Senate confirmed President William Howard Taft’s nominee Mahlon Pitney.
We have already noted that President Wilson nominated Louis Brandeis in an election year. But a month after the Brandeis confirmation, in July 1916, the Senate confirmed Justice John H. Clarke, Wilson’s second election year nomination.
In 1932, in the depths of the Great Depression, Herbert Hoover was about as unpopular as a president could be. That fall he would be overwhelmingly defeated for reelection. By July he was already, for any meaningful purpose, a lame duck. But the Senate confirmed without much hesitation the nomination of Benjamin Cardozo. In the election year of 1940 the Senate confirmed Frank Murphy.
In 1987, less than a year before the next presidential election, Ronald Reagan sent Anthony Kennedy’s name to the Senate. In February 1988, less than nine months before the presidential election, the Democratic majority confirmed him, even though at the time many observers expected the Democrats to win the next presidential election. Justice Kennedy remains on the bench today. One wonders if Senators McConnell and Cruz believe Ronald Reagan should not have been allowed to nominate a justice just a few months before he was scheduled to leave office.
There have been three chief justices confirmed in an election year. In 1796, even though he was not planning on running for a third term, George Washington nominated Oliver Ellsworth to be Chief Justice, and the Senate confirmed him. In 1888, just a few months before he would lose his bid for reelection, President Grover Cleveland sent Melville Fuller’s name to the Senate, and he quickly became Chief Justice.
The most important lame duck nomination–even more important than Brandeis– was John Adams’s “gift” to the American people: John Marshall, who is universally considered our greatest Chief Justice. To this day much of our constitutional history and constitutional law focuses on his landmark opinions.
The Marshall nomination came after Adams had been defeated for reelection. But on 27 January 1801, about five weeks before the new president was to take office, the Senate confirmed Marshall by a voice vote, as was the custom of the time. No one suggested that Adams should not fill the office. No one doubted Adams’ obligation to nominate someone for the office, and no one doubted the Senate’s obligation to consider the nomination.
The history of Supreme Court nominations is clear. Until this past week there has never been a suggestion that a sitting president does not have the power to nominate someone for the Court and that the Senate does not have an obligation to consider that nomination. If past Senates had followed the proposals of Senators McConnell and Cruz, then significant justices, including the current Justice Anthony Kennedy, would never have been confirmed. The Supreme Court would have been shorthanded at many crucial moments in our history.
Should Senator Cruz become president, does he want to be told that for the last 25% of his term he will not have the right to fill a seat on the Supreme Court? Is he ready to make a campaign pledge, that if elected he will not nominate anyone to the Supreme Court in the last year of his term?
Senators Cruz and McConnell, and some of their colleagues, insult the memory of presidents from George Washington to Ronald Reagan when they argue that a president should not be able to fill court vacancy during the last year of his term. Is this the legacy these Senate leaders want to have? Perhaps it is time for them to read some history.
Image Credit: “Supreme Court Justice Antonin Scalia” by Stephen Masker. CC BY 2.o via Wikimedia Commons.