Since Justice Scalia’s death, Sen. Chuck SchumerCharles SchumerWarren: 'Today is a great day... but I'm not doing a touchdown dance' Schumer calls Trump admin 'incompetent' after healthcare bill pulled Trump blames Democrats for ObamaCare defeat MORE (D-N.Y.) has been channeling Captain Renault in Casablanca by being “Shocked! Shocked!” that Senate Republicans might not consider any replacement before the end of President Obama’s term.
But, in a speech to the uber-liberal American Constitution Society in July 2007, Schumer said he would recommend to his fellow Democrats “that we should not confirm any Bush nominee to the Supreme Court except in extraordinary circumstances.” That was 18 months before the end of President Bush’s term.
But the fact is among the “checks and balances” that the Constitution established is a dual role for the president and the Senate in “appointing” justices to the Supreme Court. Article II, Section 2 of the Constitution gives the president the power to “nominate” and gives the Senate the power of “Advice and Consent.” As Ruth Bader Ginsburg observed in 1988, this is an arrangement of “shared power.” The Senate’s power is a “check” upon the president, as Alexander Hamilton pointed out in Federalist #76.
Consequently, the Senate can consent, or withhold its “consent,” and has done so on numerous occasions, as Joe BidenJoe BidenBiden: 'McCain is right: Need select committee' for Russia With no emerging leaders, no clear message, Democrats flounder Obama defends healthcare law on eve of repeal vote MORE and the Senate Democrats did against the nomination of Robert Bork in 1987. The Senate could table any Obama nomination by resolution without a hearing, and has done so.
There are numerous instances where the Senate has rejected presidential nominees to the Supreme Court. Approximately 31 of 160 Supreme Court nominees have been rejected. (Henry Hogue did a detailed analysis for the Congressional Research Service in 2010.) A list of some relatively recent ones (listing president-nominee) include: Hoover-Parker (1930), Johnson-Fortas (1968), Nixon-Haynsworth (1969), Nixon-Carswell (1970), and Reagan-Bork (1987).
Some illustrative examples:
George Washington’s nomination of John Rutledge in 1795 to be chief justice was defeated within days of formal filing, without hearings, because of political opposition to Rutledge.
James Madison’s nomination of Alexander Wolcott in February 1810 was rejected within days, without a hearing, because of political opposition to Wolcott.
At Andrew Jackson’s first nomination of Roger Taney to the Supreme Court, the Senate passed a resolution in March 1835 “to postpone the nomination indefinitely.” After an election and the makeup of the Senate changed, Taney was re-nominated and confirmed.
When John Tyler nominated Reuben Walworth in March 1844, a resolution to table the nomination was passed in June 1844.
When President Grant nominated Caleb Cushing for chief justice in 1874, Senate opposition was so great to Cushing’s anti-war record and history of opposition to the abolition of slavery that no vote was taken, and Grant withdrew the nomination within days.
When Rutherford B. Hayes nominated Stanley Matthews in the last months of his term in 1881, the Senate did not act on the nomination during Hayes’ term. After President Garfield was elected, Garfield resubmitted the nomination and Matthews was confirmed.
How the Senate considers a nominee is also a prerogative of the Senate. As these examples show, the Senate has withheld consent in a number of ways: passing a resolution rejecting a nominee, or “tabling” a nomination, or rejecting a nominee with a recorded vote.
Hearings themselves are a 20th century development. The first were held in 1916, when President Wilson nominated Louis Brandeis.
As Hogue makes clear, the Senate has rejected Supreme Court nominees for numerous reasons “including Senate opposition to the nominating President, the nominee’s views, or the incumbent Court; senatorial courtesy; perceived political unreliability of the nominee; perceived lack of ability; interest group opposition; and fear of altering the balance of the Court.” Another important factor has been the unpopularity of the president at the time of the appointment.
In addition, there’s no magic to the number nine. The number of Justices is not set by the Constitution, but by statute. The number of justices, for example, fluctuated between 1866 and1871. Congress reduced the number of Justices in 1866, then increased the number to ten, before reducing the number to nine in 1871, where it has remained.
Tabling any replacement for Justice Scalia by resolution would demonstrate that Republicans’ disagreement is not with any particular nominee but with this unpopular president, and his record, and his ideological litmus tests for any justice.
Forsythe is senior counsel at Americans United for Life and the author of many publications, including Abuse of Discretion: The Inside Story of Roe v. Wade (Encounter Books 2013).