It's not too late for Obama to pick a new justice

Story highlights

  • Sen. Mitch McConnell says the "vacancy should not be filled until we have a new president"
  • Brian Rosenwald: History argues persuasively for the Senate voting on any nominee
  • Not doing so would likely wreak havoc on the Senate's ability to legislate, says Rosenwald

Brian Rosenwald is a fellow and instructor of history at the University of Pennsylvania. The opinions expressed in this commentary are his.

(CNN)The death of Justice Antonin Scalia sent shockwaves through the political world, potentially upending the presidential race and possibly rendering governance in Washington even more challenging over the next year.

Democrats and Republicans scurried to find historical precedents to buttress their preferred courses of action. Almost immediately, Senate Majority Leader Mitch McConnell, R-Kentucky, declared that the "vacancy should not be filled until we have a new president."
Brian Rosenwald
Senate Judiciary Committee Chairman Charles Grassley, R-Iowa, concurred, asserting "that it's been standard practice over the last nearly 80 years that Supreme Court nominees are not nominated and confirmed during a presidential election year." Grassley's history dates back to the Senate's confirmation of Justice Frank Murphy in January 1940, a mere 12 days after President Franklin Roosevelt submitted the nomination.
    Grassley's narrow formulation of "nominated and confirmed," however, neatly sidestepped the confirmation of Justices William Brennan and Anthony Kennedy. With the Senate out of session in October 1956, Brennan received a recess appointment from President Dwight Eisenhower weeks before Election Day; Eisenhower subsequently nominated Brennan to a full term and the Senate confirmed him in March1957. President Ronald Reagan nominated Kennedy on November 11, 1987, with little more than a year to go in the presidential term and the Senate confirmed him in February 1988.
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    Conversely, Senate Minority Leader Harry Reid reminded Republicans that allowing the seat to remain vacant for more than a year would be unprecedented in recent history. Data compiled by the Congressional Research Service confirms Reid's contention. Only one Supreme Court vacancy in the 20th and 21st centuries lingered for close to the length of time which would be required to allow the 45th president to replace Scalia sometime after January 20, 2017.
    After Justice Abe Fortas resigned on May 14, 1969, his seat remained vacant for 391 days because the Senate rejected President Richard Nixon's first two nominees before confirming Harry Blackmun, who took the oath of office on June 9, 1970.
    While both sides can manipulate the history to serve their purposes, an accurate reading suggests that Sen. McConnell's proposal is historically unprecedented.

    The Fortas case

    In the coming days, many Republicans will recall the Senate's 1968 refusal to confirm Justice Fortas to succeed Chief Justice Earl Warren. Yet, the Senate rejected Fortas under dramatically different (and unique) circumstances from those existing today. Its action in no way signaled a blanket rejection of a president appointing a justice in an election year.
    In the current case, a vacancy clearly exists. By contrast, in June 1968, Chief Justice Warren tendered his resignation, "effective at your (President Lyndon Johnson's) pleasure." Johnson accepted it '"effective at such time as a successor is qualified."' This language produced doubts as to whether a vacancy even existed. Additionally, the court remained fully staffed while the Senate pondered Justice Fortas's nomination.
    Similar to McConnell and Grassley, a cadre of 18 or 19 Republican senators (out of 36), led by Robert Griffin of Michigan, proclaimed that President Johnson ought to allow his successor to replace Warren. Yet these senators did not speak for their party. Senate Minority Leader Everett Dirksen, R-Illinois, actually initially praised Johnson's dual appointments of Fortas to replace Warren and Judge Homer Thornberry to replace Fortas (Dirksen eventually declined to vote for cloture after disclosures about Fortas). According to a July 3, 1968, article in The Washington Post, Dirksen asserted that a majority of Senate Republicans, including two of the 19 initial opponents, favored confirmation of Fortas and Thornberry, and he confidently predicted "rapid approval" for them.
    Fortas's nomination eventually sank under the combined weight of ethical charges, political missteps by President Johnson that cost Fortas the critical support of Sen. Richard Russell, D-Georgia (a leader among conservative Southern Democrats), charges of cronyism, backlash over the Warren court's liberal rulings and a cloud swirling around Fortas advising Johnson after joining the court in 1965.
    Revelations that Fortas' former law partner Paul Porter had solicited $15,000 (the equivalent of $102,162 today) from five businessmen to lavishly compensate Fortas for teaching a nine-week summer seminar at American University's law school devastated the nomination. Dean B.J. Tennery testified that Porter had raised $30,000 and that he (Tennery) selected the amount of Fortas' honorarium. Yet, both its source and the amount of compensation troubled Fortas' critics.
    But the historical record offers ample evidence that a nominee without Fortas' baggage could easily have garnered Senate confirmation in 1968. In fact, after the Senate failed to invoke cloture (the cutting off of a filibuster) on Fortas' nomination in early October, Sen. Dirksen asserted that time remained in the Congressional session for the Senate to confirm another nominee if President Johnson chose to submit one.
    Names of potential appointees, including liberal Republican Sens. Thomas Kuchel of California and John Sherman Cooper of Kentucky (who was actually McConnell's old boss), as well as former Justice Arthur Goldberg, abounded on Capitol Hill. Sen. J. William Fulbright, D-Arkansas, who had opposed cloture on the Fortas nomination, went so far as to publicly endorse Goldberg for the position, avowing that he was entitled to it because "he was talked off the court" (President Johnson cajoled Goldberg into resigning from the Court in 1965 to accept appointment as U.S. Ambassador to the United Nations).

    Very late-term Supreme Court nominations

    Three older historical cases reveal that presidents have successfully appointed Supreme Court justices during their final days in office. On January 20, 1801, after suffering defeat in the previous fall's election, President John Adams forwarded to the Senate John Marshall's nomination to be chief justice while he had little more than a month remaining in office. According to scholar Henry Abraham, senators (Adams' fellow Federalists controlled the Senate) preferred other potential nominees, but they unanimously confirmed Marshall on January 27! Adams' successor, Thomas Jefferson, was sworn in on March 4 of that year.
    Similarly, the Whig William Henry Harrison crushed President Martin Van Buren in the election of 1840, 234 electoral votes to 60 electoral votes, while the Whigs also captured control of the Senate. Yet, on February 25, 1841, with a mere seven days remaining in Van Buren's term, Justice Phillip Barbour died. Van Buren hastily nominated Peter Daniel with speed that would be unimaginable today. As Abraham recounts, the victorious Whigs attempted to stall, but Senate Democrats outmaneuvered them and forced a vote to confirm Daniel before Van Buren's term expired (and the Senate changed hands).
    In the third case, President Benjamin Harrison confronted a Supreme Court vacancy when Justice Lucius Quintus C. Lamar died on January 23, 1893, months after Harrison fell in a rematch against his predecessor and successor, Grover Cleveland. Again the opposition party stood weeks from gaining control of both the presidency and the Senate, compelling Harrison to act swiftly and shrewdly to prevent them from inheriting the Supreme Court vacancy.
    Scholars Abraham and Keith Whittington detail how, alerted to the Democratic intentions to obstruct, Harrison appointed a close family friend and moderate former Democratic colleague from his days in the Senate, Howell Jackson, then serving as a judge on the 6th Circuit Court of Appeals. The Senate confirmed Jackson on February 18, 1893.
    Jackson received the final Supreme Court appointment doled out by a president whose successor had already won election. Yet, these three cases reflect the frequency of the practice in the 19th century. According to data compiled by Whittington, the Senate confirmed seven of 14 such appointees.
    Additionally, dating to the present, while senators have rejected three of five nominees appointed in the last six months of a president's term (before an election), they have confirmed 21 of 24 nominees submitted within the last year of a president's term. The success rate for these appointments (87.5%) roughly matches the overall confirmation rate (86.9%) for Supreme Court justices.
    Even the confirmation wars of 1844, which might best support Republicans' current demand, actually provide evidence to aid both sides. President John Tyler, an ideological iconoclast in the Whig Party, ascended to the presidency upon Harrison's death a mere month into his term. Tyler proceeded to feud with Congressional Whigs. The resulting animosity contributed to Tyler miserably struggling to replace Justices Smith Thompson and Henry Baldwin, who died in December 1843 and April 1844 respectively.
    The Senate rejected Tyler's first nominee to replace Thompson. Abraham chronicles how, sensing that they would triumph in the upcoming presidential election, and yearning for the opportunity to appoint one of their own, Senate Whigs then postponed consideration of Tyler's next two nominees. Only after Democrat James K. Polk captured the presidency did the Senate finally relent and approve one of Tyler's nominees (while refusing action on two others), filling Thompson's seat after 14 months. Baldwin's seat would remain vacant for a whopping 28 months before the Senate finally confirmed Justice Robert Grier to succeed him.
    Yet, even in this case, the Senate voted in some fashion on four of Tyler's six nominations (Tyler nominated Judge Edward King twice in 1844) -- a far cry from refusing action on any nominee.
    Overall, the history argues persuasively for the Senate voting on any nomination submitted by President Barack Obama and judging the nominee on his or her merits. Failing to do so would likely create a new precedent dictating that Supreme Court vacancies in the final year of a president's term would remain unfilled while the opposition party controls the Senate. Such a rule threatens to exacerbate the already toxic judicial confirmation process and to hamper the court's functionality. Such action also likely would wreak havoc on the Senate's ability to legislate over the next few years as Democrats bitterly retaliate.