Supreme Court Justice Antonin Scalia was a master of language and argument. No matter one’s judgment of his judicial legacy, it’s hard not to have been awed by his choice of words and often obscure phrases. Calling out the majority’s reasoning in the recent King v. Burwell health-care decision probably takes the cake, as Scalia termed it “interpretive jiggery-pokery.”
Fittingly, interpretive jiggery-pokery abounds this weekend about the norms and rules that govern the filling of Supreme Court and other judicial vacancies. No more so than by Republican leaders and presidential candidates seeking to stop the Senate from voting to confirm a third Obama nominee to the Supreme Court. With a tip of the hat to the late justice, these claims strike me as “pure applesauce,” if not argle-bargle.
Some reactions to these claims about the Senate’s conduct of advice and consent for judicial nominations.
There is no election-year taboo against advice and consent
Counter to claims, there is no election year taboo or rule prohibiting presidents from nominating or senators from considering Supreme Court nominees during presidential election years. As SCOTUSblog details, there have not been many such confirmation contests since 1900. But Anthony M. Kennedy was nominated in 1987 and confirmed in 1988, a presidential election year. Before that, history records the failed elevation of Abe Fortas to chief justice in 1968 and the recess appointment of William Brennan in 1956 (because the Senate had already adjourned for the election year). Before those episodes, a vacancy was last filled in a presidential election year in the 1930s.
The paucity of nominations and confirmations in presidential election years to the Supreme Court is not the result of a norm or rule against their consideration. The timing of nominations stems from the vagaries of when Supreme Court vacancies arise. And such vacancies are largely random, given that we do not think justices pass away strategically (to avoid vacancies in presidential election years). Granted, we have some evidence that justices are more likely to retire earlier in a co-partisan president’s term. But evidence more broadly of strategic retirement by justices is mixed. In short, if vacancies on the highest court are infrequently filled during presidential election years, that trend is shaped by the timing of vacancies, not presidential or senatorial refusal to act.
The Thurmond Rule does not prohibit the Senate from considering judicial nominations
Some senators say that the “Thurmond Rule” prevents the president from nominating and the Senate from confirming any judicial nominations in a presidential election year. A weak norm sometimes claimed by Senate majorities suggests that senators cannot confirm opposition party nominees to the federal bench during presidential election years.
But there is no such formal rule. And the norm is opportunistically claimed by majorities during periods of divided control. Moreover, the empirical record shows ample confirmation activity during presidential election years. Between 1947 and 2014, about 10 percent of all confirmations to the federal appellate court occurred during a presidential election year; for district court confirmations, 13 percent occurred during a presidential contest.
That said, some studies show that retirement from the lower federal courts is more strategic than is the case for Supreme Court vacancies, complicating comparisons across years. In any case, if there’s any norm against advice and consent in presidential election years, it is surely unevenly enforced.
What’s going on here?
Senators like to justify procedure and practice on history and tradition. But senators’ procedural claims often reflect their partisan and political agendas. In this case, Republican leaders’ short-term partisan interest in keeping another Obama nominee off the Supreme Court apparently dictates their claims about procedural traditions.
Such short-term interests no doubt reflect both the intensity of conservative opposition to the president and the heightened importance of a divided court to the party’s base. And catering those interests is seemingly urgent enough to trump the risk that Democrats keep the White House and Republicans lose control of the Senate in November.
No party has a monopoly on dressing up political interests in institutional garb. But the GOP’s stance following Scalia’s death seems remarkably transparent.
Can the GOP’s strategy succeed?
There’s much to be written and speculated about whether Republicans can succeed in playing hardball against a Supreme Court nominee. (Some initial thoughts here.) Studies of Senate confirmation votes provide strong evidence that senators’ votes are not solely driven by party or ideological concerns. Public opinion back home can matter.
In that sense, despite the strong polarization of the parties in recent years, there’s an outside chance that a supermajority could be cobbled to confirm a moderate Obama appointee. And that is the procedural genius of the majority leader’s rejection of the Senate’s constitutional duty to provide advice (if not consent) to fill Scalia’s seat. If there’s no vote, cross-pressured GOP senators are saved from a tough public vote and McConnell preserves the vacancy until after the electoral dust settles.
If McConnell’s strategy succeeds, he’ll have created quite the new institutional tradition.