Although predicted by court pundits for years, last week’s resignation of Justice Anthony Kennedy was a shocker.
Soon after the announcement, Senate minority leader Chuck Schumer (D-NY) said Majority Leader Mitch McConnell (R-KY) should show consistency and respect his own precedent by delaying Senate confirmation proceedings for Kennedy’s successor until a new Congress is seated.
“Millions of people are just months away from determining the Senators who should vote to confirm or reject the president’s nominee and their voices deserve to be heard,” Schumer said, adding that to vote sooner “would be the absolute height of hypocrisy.”
But McConnell didn’t stop the vote on Merrick Garland because he objected to the Senate voting on a justice nomination during an election year, rather because he objected to a “lame duck” president nominating a justice during a presidential election year.
Whether one agrees with McConnell or feels that the Democrats had a Supreme Court seat unjustly stolen from them, the majority leader is now following precedent.
Since Herbert Hoover’s failed reelection campaign and the nomination of Benjamin Cardozo, the Senate hadn’t been asked to approve a Supreme Court nomination during a presidential election campaign. The thinking is that it would be impossible to keep the presidential race out of the debate. The only exception was the appointment of Justice Kennedy himself, who was nominated by Ronald Reagan in his second-to-last year as president but approved by Congress the next year.
It was an unusual case. Reagan had nominated Robert Bork for the seat, but within 45 minutes of the announcement, Senator Ted Kennedy got on the Senate floor to slander the nominee.
“Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists would be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy,” Sen. Kennedy said.
Bork’s nomination was rejected by the Democrat-controlled Senate, 58–42. Reagan’s second pick had to withdraw when it was learned that he smoked pot. Anthony Kennedy was nominated a few weeks later, and the Senate got around to confirming him in February 1988.
Since the Kennedy nomination, three justices have been nominated and confirmed during midterm election years — Souter (1990), Breyer (1994), and Kagan (2010). Schumer wasn’t in the Senate for the first two, but he did have the opportunity to object to voting on Kagan during a midterm election year, but he didn’t. Now that Donald Trump is president, Schumer objects to a midterm appointment. Who is the real hypocrite here?
In the end, the early objection to President Trump’s nominee has less to do with timing and more with Roe v. Wade. Some commentators have suggested that as soon as the new justice shows up, there will be a vote to outlaw abortion. Those commentators should switch to decaf because it’s not going to happen.
During his confirmation hearings in 2005, future Chief Justice Roberts — nominated by anti-abortion Bush #43 — said Roe was “settled as a precedent of the court.”
Look for Trump to appoint a judge like Gorsuch, who has a strong constitutionalist background but no track record on issues that could be attacked by the Senate. While the GOP has a 50-49 lead (assuming McCain doesn’t return soon), senators such as Susan Collins and Lisa Murkowski will not vote to approve an overtly anti-abortion judge.
In the end, it’s the Senate’s decision. As Charles C.W. Cooke wrote in the National Review after the Kennedy resignation:
“The Senate gets to decide what to do with judicial nominations; everything else is just shouting. In 2016, the Senate was controlled by Republicans. A Democratic president sent that Senate a nomination it didn’t like, and that Senate decided not to act on it.”
Even though Cooke believes that Merrick Garland deserved a hearing, it doesn’t matter. “The Senate gets to decide who sits on the Supreme Court,” he wrote. “In this area, it has an absolute right to say ‘no,’ and it can do so according to whatever rules and procedures it sets for itself.”