By Reece Nations, Managing Editor
The Supreme Court of the United States. Photo by Robert Mathews on Unsplash.
WASHINGTON, D.C. – In its more than 230 years of existence, the United States Senate has confirmed 126 Supreme Court nominations and more than 500 Cabinet nominations as a legislative body, according to senate.gov.
While the confirmation powers of the Senate are bestowed by the U.S. Constitution, historians point out Supreme Court nominations in recent years have shifted away from the precedents of old. Now, as a new round of Senate hearings for Supreme Court Justice nominee Amy Coney Barrett concludes, scrutiny of the process continues to follow suit.
Barrett, who currently serves as circuit judge on the Seventh Circuit U.S. Court of Appeals, was nominated by President Donald Trump on Sept. 26 to fill the vacancy created by the death of Justice Ruth Bader Ginsburg.
“The Right Thing To Do”
For instance, one high-profile historical example was highlighted during the Oct. 6 Vice Presidential debate between Sen. Kamala Harris and incumbent Vice President Mike Pence. In response to a question about the possibility of expanding the number of justices on the Supreme Court, Harris dodged by noting that President Abraham Lincoln delayed his nomination of Salmon Chase to the bench until after the election of 1864.
Harris framed Lincoln’s delay as a matter of principle, stating “Honest Abe said it’s not the right thing to do,” during the debate.
“The American people deserve to make the decision about who will be the next president in the United States,” Harris said during the debate. “And then that person can select who will serve for a lifetime and the highest court of our land. And so, Joe and I are very clear, the American people are voting right now. And it should be their decision about who will serve on this most important body for a lifetime.”
While it is true that Lincoln declined to ram through Chase’s nomination until after that year’s election, the Senate was out of session until December and moving forward with the process would have proven difficult, according to a fact-check by The Federalist. Lincoln strategically maneuvered this decision to ensure he had the political support needed to confirm Chase once the Senate had resumed and he secured his re-election.
Partisan Conflicts, Deepened Divides
Another factor amplifying partisan divide surrounding the Senate’s confirmation process concerns former President Barack Obama’s nomination of U.S. Court of Appeals Judge Merrick Garland during the 2016 election year.
In March 2016, Senate Majority Leader Mitch McConnell, R-Ky., and his party’s allies successfully blocked Garland’s nomination. McConnell and his colleagues frequently invoked the forthcoming presidential election as the primary reason not to confirm Garland.
“The American people are perfectly capable of having their say on this issue, so let’s give them a voice,” McConnell said on the Senate floor following Garland’s nomination. “Let’s let the American people decide. The Senate will appropriately revisit the matter when it considers the qualifications of the nominee the next president nominates, whoever that might be.”
Article II, Section 2 of the Constitution states the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for,” according to constitution.congress.gov.
Lady Justice, a symbol of the judiciary. Photo by Tingey Injury Law Firm on Unsplash.
Notably, Ginsburg herself advocated for a vote on Garland’s nomination, telling The New York Times in 2016, “There’s nothing in the Constitution that says the president stops being the president in his last year.”
Although the Supreme Court is meant to be apolitical in nature, nothing about the Senate’s powers and duties to confirm nominees to the bench prohibits this behavior. Sen. Lindsey Graham, R-S.C., chairman of the Senate Judiciary Committee since 2019, has made contradicting statements on the record about whether a president is justified in appointing a Supreme Court Justice in an election year.
“I want you to use my words against me,” Graham said during a Judiciary Committee meeting in March 2016. “If there’s a Republican president in 2016 and a vacancy occurs in the last year of the first term, you can say Lindsey Graham said, ‘Let’s let the next president, whoever it might be, make that nomination.’ And you could use my words against me and you’d be absolutely right.”
When confronted with his prior comments, Graham insisted his views on the judicial-confirmation process had changed since the contentious confirmation hearings of Justice Brett Kavanaugh in 2018. Further, Graham declared in a letter to Democratic members of the Judiciary Committee “I am certain if the shoe were on the other foot, you would do the same.”
Graham’s letter read, “Compare the treatment of Robert Bork, Clarence Thomas, Samuel Alito, and Brett Kavanaugh to that of Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan, and it’s clear that there already is one set of rules for a Republican president and one set of rules for a Democrat president.”
Why It Matters
Regardless of what views she holds regarding her “originalist” interpretation of the Constitution and the norms established by Roe v. Wade, Obergefell v. Hodges, and Citizens United v. FEC, Barrett’s confirmation vote appears destined to fall along party lines.
With the hearings complete, the Judiciary Committee has officially scheduled Barrett’s nomination vote for Oct. 22, according to CBSnews.com. Senate Republicans need only a simple majority — one guaranteed by their three-seat majority in the chamber — to place Barrett on the Supreme Court.
Although little can be done by Senate Democrats at this point to subvert or delay Barrett’s confirmation, a new strategy has been brought to the forefront by the party: expanding the Supreme Court.
While nine justices currently comprise the court, nothing in the Constitution mandates this number. The Supreme Court has varied in size throughout its history — seating as few as 5 justices and as many as 10 at one point — before settling at its current number in 1869, according to National Geographic.
Should Democrats obtain a Senate-majority following the Nov. 4 general elections, there would be nothing Republicans could do to prevent the court from being expanded and having new justices appointed during the following legislative session.
Supreme Court sits vacant. Photo by Jackie Hope on Unsplash
“Mitch McConnell set the precedent. No Supreme Court vacancies filled in an election year. If he violates it, when Democrats control the Senate in the next Congress, we must abolish the filibuster and expand the Supreme Court,” Sen. Ed Markey, D-Mass., tweeted Sept. 18.
Although this scenario is predicated on Democrat’s success come November, the electorate should be aware of just what their vote entails this election season.
About Reece Nations, Managing Editor
