Almost as soon as Supreme Court Justice Ruth Bader Ginsburg passed away on Friday—46 days before the presidential election—Democrats have been pushing for President Trump to refrain from nominating her replacement and for the Republican-controlled Senate to refuse to confirm a nominee.

The fair thing to do, they claim, is to allow the people to choose the president whom they would like to fill the seat. Naturally, this is a calculated gamble that Democrat Joe Biden will win the presidency next month and therefore name Justice Ginsburg’s successor.

But were this to happen—were President Trump to abdicate his authority to immediately nominate a potential Justice and the Senate willingly delay a vote so that a President from a different party could claim the nomination instead—it would buck more than 200 years of historical precedent.

The Constitution grants the President absolute authority to "nominate, and by and with the Advice and Consent of the Senate...appoint Judges of the Supreme Court" throughout the duration of his term. President Trump’s term ends on January 21, 2021 and he can nominate Supreme Court candidates at any point during this term; including after the presidential election on November 3. The Senate, meanwhile, remains in its current term until January 3, 2021 and can vote on a nominee at any point until then—even if Republicans lose control of the Senate next month. Current Senators’ terms don’t expire for another two months after that, and in that time they can continue to go about the business of the Senate as they see fit.

While it may be politically unpopular or even suicidal, confirming a Supreme Court Justice during such a “lame duck session” would absolutely be constitutionally permissible.

So too is nominating and confirming a Justice before the election. In fact, throughout American history, there have been 16 U.S. Supreme Court vacancies in presidential election years. 12 justices have been nominated in an election year and confirmed before the presidential election, while only one was nominated but failed to win confirmation in the Senate.

The first opening came in 1804, when Justice Alfred Moore retired and President Thomas Jefferson appointed William Johnson to replace him. 282 days before Jefferson stood for re-election, the Senate confirmed Johnson and he was sworn in the same day.

Forty years later, Democratic President John Tyler appointed Edward King to the Court just five months before Election Day, but the Whig-controlled Senate indicated that it not take up the nomination—in part hoping that the Whig Party’s presidential candidate, Henry Clay, would defeat Tyler and make a different nomination. Tyler withdrew King’s nomination, but won re-election and re-nominated King a month later. The Senate, which was still controlled by the Whigs after 1844, voted to table King’s nomination, and Tyler eventually withdrew it. The battle between Tyler and the Senate over judicial nominations was so fierce that the Senate eventually rejected three more of Tyler’s Court picks.

In August of 1852, Whig President Millard Fillmore nominated Edward Bradford to the Court to replace the deceased John McKinley, but the Democrat-controlled Senate refused to take up the nomination before the election. Fillmore ended up losing to Democrat Franklin Pierce and attempted twice more to fill McKinley’s seat before he left office, but the Senate—which Democrats still controlled after the 1852 election—rejected him both times so that Pierce could name a replacement instead. Even though Fillmore likely knew his nominations were doomed, he still made them.

Eight years later, a Supreme Court vacancy came open 159 days before Election Day, but President James Buchanan waited until February 5, 1861 to nominate Jeremiah Black to fill the seat. There is no indication, however, that this was to “give the people the choice.” Buchanan lost the election of 1860 to Abraham Lincoln and used his lame duck session to try to get Black confirmed. The newly-elected Republican Senate, though, rejected the pick.

On October 12, 1864—just 27 days before President Lincoln stood for re-election—Supreme Court Justice Roger Taney died suddenly. Since the timeline was so rushed and Lincoln’s re-election was assured (the Democratic South had, after all, seceded and thus would not be voting), Lincoln decided to hold off a few weeks before naming Salmon P. Chase to fill the vacancy on December 4th.

Twice more in the 1800s—in both 1888 and 1892—Supreme Court seats opened up in presidential election years and in both instances, Presidents Grover Cleveland and Benjamin Harrison presented nominees to the Senate. In both instances, their nominees—Melville Fuller and George Shiras, Jr.—were confirmed. The Senate even confirmed Shiras, Jr. on a voice vote!

This practice of immediately naming a Supreme Court nominee during a presidential election year continued into the 20th century, as every single President who had such a vacancy named a replacement before Election Day.

In March of 1912, Republican President William Howard Taft nominated Mahlon Pitney to succeed the deceased John Harlan. The Republican-controlled Senate confirmed him overwhelmingly just five days later.

Four years after that, Democratic President Woodrow Wilson made two Supreme Court nominations before the presidential election of 1916: Louis Brandeis and John Clarke. The Democrat-controlled Senate confirmed both; even voting unanimously for Clarke just ten days after his nomination!

In February of 1932, the Republican-controlled Senate confirmed Republican President Herbert Hoover’s nomination of Benjamin Cardozo on a voice vote. Eight years later, it also used a voice vote to confirm Democrat Franklin Roosevelt’s selection of Frank Murphy.

In September of 1956, President Dwight D. Eisenhower learned that Justice Sherman Minton was planning to retire the following month. On October 16, the day after Minton left office and just 52 days before Eisenhower stood for re-election, he made a recess appointment to name William Brennan to the Court. When the Senate returned to session in early 1957, it voted to confirm Brennan’s nomination.

In 1968, Chief Justice Earl Warren decided to retire and President Lyndon B. Johnson nominated Associate Justice Abe Fortas to take his place. To replace Fortas as Associate Justice, Johnson nominated Homer Thornberry. However, Republican Senators discovered that Fortas received thousands of dollars for speaking engagements from various business interests and filibustered his nomination. Democrats did not have the votes for cloture, and his nomination was defeated. Since Fortas was still an Associate Justice, there would be no new opening and Thornberry withdrew his name as Johnson’s nominee.

Nearly 50 years passed before another Supreme Court seat opened up in an election year. In early 2016, conservative Justice Antonin Scalia passed away suddenly, and Democratic President Barack Obama immediately nominated Merrick Garland to replace him. The Republican-controlled Senate, however, refused to act on the nomination.

This, of course, prompted outrage among Democrats, but there was precedent from both 1844 and 1852 to support the Senate’s decision. Senators in both of those election years tabled presidential nominees in the hopes that their party would win the presidential election and with it the chance to name a potential Justice more in line with their philosophy.

There was, in that sense, nothing unusual about the Republican Senate’s refusal to vote on Garland’s nomination; just as there is nothing unusual about a Senate immediately voting on and confirming a President’s Supreme Court nominee when both the President and the Senate majority belong to the same party.

This is the accepted norm in American politics and has been almost since the dawn of America itself.

Dan O'Donnell

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