The Scalia Vacancy and the Supreme Court

Supreme CourtToday I have the honor to serving as the keynote speaker for the Federal Bar Association Orlando Chapter’s conference. I will be speaking at noon at the U.S Courthouse on the Supreme Court’s history and current controversies. This will obviously include the long standing vacancy of the seat once held by Associate Justice Antonin Scalia.

AntoninScaliaThe vacancy left by Scalia may now set a record. It has been 292 days since Scalia passed on February 13, 2016. It has been 259 days since the nomination of Judge Merrick Garland.

The longest delay in filling a seat since the current nine-member court was established was set during the Nixon Administration. The cause was two failed nominations to replace Abe Fortas who left the Court under an ethical cloud. The result was the confirmation of Justice Henry Blackmun on June 9, 1970. That was 391 days later. Given the inauguration is not until January 20th, Trump will not be able to even nominate a new person under 341 days later — assuming Mitch McConnell holds with his pledge not to move on any nominee during the Obama Administration. That could easily set the record if the process takes a couple of months.

For those keeping score, the score longest was 201, which we will pass shortly. That was the vacancy left by the death of Salmon Chase in 1873 and the eventual confirmation of Morrison Waite. We just passed the record set by the confirmation process after the death of Stanley Matthews (in 1889) when he was replaced by David Brewer.

henry_baldwin_456The longest vacancy in the entire history of the Court occurred after the death of Justice Henry Baldwin. That was 841 days, Baldwin (who was lost famous for introducing the practice of dissents on the Court as well as being — according to some — deranged) died on April 21, 1844. However, President Tyler was grossly unpopular and the Congress was in an oppositional mood. Robert C. Grier finally was added to the Court on August 10, 1846. Indeed, Tyler never did succeed. It was his successor James Polk who secured the confirmation. Tyler made nine attempts to get a nominee confirmed.

220px-jsblack-agThe longest nomination period for any one nominee will not be challenged by Judge Garland. It was 781 days after President Buchanan nominated his own Secretary of State Jeremiah Black to replace Peter Daniel (left), who died in May 1860. Indeed, as bad as it has been for Judge Garland, it was worse for Daniel. After that one delay, he failed by one vote. The seat was filled by President Abraham Lincoln with Samuel Miller in 1862.

93 thoughts on “The Scalia Vacancy and the Supreme Court

  1. The truth is that the Senate has continuously acted in bad faith with respect to judicial appointments at every level since Pres. Obama took office. The confirmation statistics speak for themselves.

      • mespo – the Democrats have done the same. Now they are getting back what they brought to the table. They wanted to get rid of the filibuster, well its gone now.

            • When you’ve been the Republican presidential nominee, you get to define what an authentic Republican looks like. The RINO discourse is silly and needs to go away.

              • Toads – McCain claims to be a Republican but only acts like it in the two years before his Senate term is up. He was a liberal running for President. And he didn’t run very hard.

                • John McCain has a lifetime rating of 81.67 (out of 100) from the American Conservative Union. His median score during the period running from 1982 to 1996 was 86 and his median score during the period running from 1997 to 2015 was 77. The lowest score he ever received was 52, in calendar year 2012. His voting record had modest flux around a consistent set point through 2007, with the noted phase change around 1997. It has been more erratic since 2007, with large year-to-year swings. He has never had a liberal voting record for even one year, except in the addled heads of incorrigible sectaries.

                  He’s an abrasive man with some irritating and idiosyncratic views (on immigration, for example), and is sometimes given to acting out of spite or pique. He hasn’t been square with his electorate in recent years on that last subject, and has unaccountably insisted on remaining in Congress even though he is 80 years old and can well afford to retire. He and his wife have given bad career advice to their annoying and unattractive daughter. He is not, however, who you say he is.

                  • Toads – I have live in Arizona longer than McCain and for McCain to be elected Senator to begin with, he had to be just as conservative as Barry. Since Barry has died, he has no tiller on his boat. He just drifts as the currents take him. First, he wants to build the wall so he can be elected, then he is for amnesty. He is a hothead who should have retired 18 years ago.

                • And he didn’t run very hard.

                  Rubbish. During the campaign, eight major financial institutions were revealed to be insolvent (along with about 1/2 the financial system in the Low Countries and the entire Icelandic banking system). The public stuck the Republicans with the bill, McCain’s efforts and the Administration’s efforts to improve accounting practices at Fannie Mae and Freddie Mac notwithstanding. The outgoing president had a horrid approval rating to boot. McCain faced an incredible headwind. The real problem with his campaign was that it was run by a pair of mercenary operatives named Schmidt and Wallace, a serious piece of bad judgment on his part. Schmidt and Wallace have been embarrassments since, but neither McCain nor the other staff have provided them any succor.

                  • Toads – he was afraid to go after Obama, for fear he would be called racist. There was a great comeback to that, but he didn’t have the cojones to go after it.

                    • When a political party wins the presidency, its peak performance is commonly with the subsequent election, after which it loses support steadily each additional time it competes. See, for example, Roosevelt’s performance, which was at its peak in 1936 and at its pit in 1944. Absent confounding factors (like important 3d party candidates), this regularity seldom fails to appear, and the last occasion where it did not was in 1904. Bush’s plurality in 2004 was 3% of the electorate, so under normal circumstances, for Republicans to have retained the presidency would have been unusual. However, circumstances were exceptionally uncongenial. The incumbent was discredited and was carrying some of the lowest approval ratings recorded since the beginnings of scientific polling of such questions in 1947. Then you had the financial catastrophe, starting with the imposition of conservatorships on Fannie Mae and Freddie Mac at the beginning of September 2008.

                      The quality of McCain’s campaigning was immaterial. BO might have won had he been caught with a dead girl or a live boy.

                    • Toads – if he was caught with a dead girl and a live guy, that could have done it. He had all the black vote regardless. Didn’t matter what he did or what he had done. He had the liberal white guilt vote locked. It was the ones who were concerned about Hope and Change that he had to worry about.

  2. Did Germany have a Supreme Court under the Third Reich? Maybe we do not need one. Trump is soon to take office. Let us see what happens. Y’all voted him in. Live with it. Or die because of it. Live free or die. I am from New Hampshire.

  3. The delay had as much to do with the election as the Republican stonewalling. Both sides wanted their candidate to have the chance to nominate someone of their choosing. Trump will eventually get his man or woman and the court will tilt Right though not as far as some fear. Lawyers are lawyers and erratic flights of ideological fancy are not in the DNA. SCOTUS understands de Tocqueville:

    “The President, who exercises a limited
    power, may err without causing great mischief in the state. Congress
    may decide amiss without destroying the Union, because
    the electoral body … may cause it to retract its decision …. But
    if the Supreme Court is ever composed of imprudent or bad men,
    the Union may be plunged into anarchy or civil war.”

    ~Alexis de Tocqueville, Democracy in America (1835)

  4. NO Turley should be named Special Prosecutor for Hillary Clinton to put her in jail. If he nails her, a SCOTUS seat is assured.

  5. For the record, the Vikings won last night’s game since they got 61 more yards of offense than the Cowboys. The model of “score” is a bastion of the 19th century before the forward pass, headgear, and the defenseless player. Games should be decided by total yards gained, not how those yards are parsed into points. The Cowboys are #NotMyWinner.

      • That’s one mediocre op-ed.

        1. The central problem with eliminating the electoral college (rather than modifying it’s features) is one he never makes reference to: you’d have to nationalize elections administration. While we’re at it, he pretends it’s nearly universal to have popular election of the head of state. It is not. It is done in Latin America, in African electoral systems (as a rule), in most Eastern European countries, and a half-dozen other loci. If you’re talking about countries populous enough generally and with a sufficient complement of cities of a certain size such that full-bore regional government would be advisable (in lieu of a situation where you had a central government and local government only), you’re looking at about 5 Latin American countries, 3 Eastern European countries, roughly 4 African countries, and a few others. Monarchies are common enough. The use of electoral colleges or the national legislature in lieu of that is common enough.

        2. He ignores completely problems with nominating procedures for the presidency and for other elected offics.

        3. He makes no reference to the use of ordinal balloting.

        4. He offers no reference to one of the impediments to the elimination of gerrymandering: an insistence by the courts on strict equipopulousness requires comprehensive exercises of discretion on the part of re-districting authorities. A practice manual for drawing constituencies which leaves only circumscribed discretion is going to have to allow for much more room for variations in constituency population.

        5. He makes no reference to the haphazard electoral calendar.

        6. He makes no reference to the dysfunctions inherent in the sort of bicameralism practiced here.

        7. He offers no solution to the abuse of power by the judiciary. There are some remedies, but they incorporate legislators beating up on judges and lawyers and taking their toys away. Cannot have that, can we?

  6. Please, please Mr. Trump,

    Nominate Jonathan Turley as the next US Supreme Court Justice !
    If we want to bring quality, equality, and learned justice to our highest court, Jonathan Turley is it.

    Someone please here start an online petition!

    https://www.change.org/

  7. This should escape partisanship.

    If it was President Romney, he should have had the ability to fill the seat. The Senate should be ashamed. Obama was elected fairly: for the full term (not three years).

    Equally, when the Steak-Salesman has a year left, he should have the same ability to choose and expect hearings.

            • Only an uninformed idiot would argue that Trump’s success is due to his business acumen. I suggest you read some of the biographies that lay out how Trump’s success has had much less to do with the business acumen about which he likes to brag. You might try the following:

              Never Enough, Michael D’Antonio

              The Making of Donald Trump, David Cay Johnston

              Trump Revealed: An American Journey of Ambition, Ego, Money, and Power, Michael Kranish and Marc Fisher

                • I am suppose to place more trust and credibility in Trump’s pronouncements about himself? Two of the biographies I read were written by Pulitzer Prize winning journalists who are highly regarded for their work. I have read many of their other works and always found them to be credible and trustworthy. Thisis not something I can or will say about Trump, who repeatedly lied, made up facts, made assertions without factual support, and just all around ignored facts and truth throughout the campaign. But this was nothing new. He has done this throughout his entire business career.

                  • dogfightwithdogma – the Pulitzer Prize has the same elan as the Nobel Peace Prize. It is like anything on the NYT Best Sellers is not going to be worth reading in 20 years. Pulitizers are politized and have been known to be faked, just like Obama’s Nobel.

                    • That some Pulitzers and/or Nobel Prizes might be “faked” (an assertion by the way which I do not accept), does not mean that all Pulitzers are fake, nor that the Pulitzers won by the two particular journalists whom I referenced are somehow illegitimate. You are employing faulty logic here. You must actually make a compelling argument that the two I mentioned were unearned Pulitzers. You are simply making a generalized assertion as a means of rationalizing your position, without actually offering an argument.

                    • dogfightwithdogma – I am willing to make the argument that no Pulitzer in the last 20 years is earned. Maybe longer.

                  • Joseph Epstein wrote an essay some years back on recognition wherein he recalled that Saul Bellow was awarded a Pulitzer Prize after he’d won the Nobel Prize for Literature. “That must have been like being handed warmed over instant coffee after having tasted 1st rate cognac”. The Pulitzer is reporters patting each other on the back. Reporters are people who turn in copy on time. They do not actually know much.

                    • Horseshit. I have known and worked many journalists/reporters in my lifetime and, with rare exception, they were very well informed, well educated individuals who knew a great deal about a great many subjects. You obviously haven’t the faintest clue about the skills and background of journalists.

                      Well, there you have it. Joseph Epstein speaks about the Pulitzers and thus it is a truth that must be recognized by everyone everywhere. Epstein was full of shit, as are you, on this subject. You are trying — rather poorly — to pass off an opinion as an unquestionable truth.

              • Only an uninformed idiot would argue that Trump’s success is due to his business acumen.

                No, he has $4 bn in assets and has been on the Forbes 400 for 30-odd years because he has a great haircut. There are journalists in the debunking business. That’s how they attempt to get attention and make a name for themselves. They seldom have any serious expertise. Some of them are putting one over on the marks who buy their books and some of them are cretins putting one over on themselves.

                • You are engaging in rationalization. While there may be journalists who do what you have asserted, you have not established that the particular journalists whose work I cited have done this. So go ahead and give it your best shot. Read the books and refute the facts and conclusions presented in these works. I think it is far more likely that you are putting one over on yourself. I suspect that your critical thinking faculties have been contaminated by confirmation bias, motivated reasoning, and any other number of logical fallacies and cognitive biases.

                  • I’ve had these arguments with the economist Scott Sumner, who trotted out the usual complaints about Trump’s wealth.

                    The problem with one of these characters was summarized by Ron Nessen a generation ago, “no one believes the official spokesman; everyone trusts an unidentified source”. We’re to take on faith what some unidentified individual tells reporter X in confidence about the dimensions of Trump’s assets, as if the reporter given an advance has no incentive not to make crap up. Companies like Forbes and PrivCo which make it their business to produce estimates of personal assets and the revenues of closely-held corporations are not less credible than reporters with an axe to grind.

                    As for the complaint that he could have done as well investing in index funds, these are in error even if your calculations omit the effect of taxes and personal consumption on the size of re-invested earnings. Trump’s net worth was far in excess of his father’s (and his father was a very capable man). In inspecting Forbes summary of the sources of wealth on it’s list, you’ll notice that only a modest minority (about 10%) are listed as having done so primarily through ‘investments’, and these were all through discretionary stakes taken in companies, not through tossing money into passive vehicles. In comparing Trump to other real estate moguls who have been on the list consistently, his assets appreciate at about the median rate.

                    In short, it’s all BS from these characters, but it’s BS you’re happy to eat.

                    • Why are you giving me a rebuttal argument to the argument made by economist Scott Sumner when I never mentioned him? The obligation here is for you to offer a rebuttal to and/or criticism of the facts and conclusions made in the books I mentioned, not to an economist whom I did not mention and had never even heard of before you mentioned him.

                    • You offered links to ‘ivestigative journalists’ You never offered any arguments of your own. I supplied the arguments and the replies.

  8. The only items of importance are contained in the Constitution.

    There is no time limit to nominate.

    There are only two requirements

    Nomination

    Confirmation

    That ends the discussion. The left wing fascists no doubt want it moved to an administrative fourth branch of government appointee status – No problem. Requires and Amendment. Something they try hard to avoid.

    So let’s discuss what isn’t a requirement

    Citizenship
    Age
    Education
    Law Degree
    Bar Exam
    Approval of Professional Status
    Legal Experience
    Judicial Experience

    Membership in or approval of the ABA
    Membership in or approval of he ACLU
    Membership in or approval of either some political party.
    To name a few of the many items not required.

    There is one addtional item worth mentioning and one only.

    The make up of the Senate and it’s requirements featured citizenship and age. They were assigned those jobs needing older, more experienced, presumably wiser, and less prone to hasty decisions.

    The Representatives were likewise assigned certain responsibilities such as funding bills. Citizehship yes but a younger age permitted. Which makes one wonder considering the state of the economy.

    The responsibility in choosing those delegates to the federal congress and along with that assignment the choice of those of more age, experience, education, etc was retained by the citizens of the the several States.

    In 240 years not one State has moved to change the requirements much less set a time limit on appointments. May have talked about but nothing actually done.

    Which speaks to the wisdom of the citizens. Same applies to the Electoral College.

    BS and hot air aside the rules are clear and unavoidable. Don’t like them. Get off your couch potato ass and do something. It’s called an Amendment To the Constitution. Something of which all good citizens should be familiar in as much as it is the Handbook of Citizenship.

    Thus ends the conversation.

    Now begins the BS

    • The BS is usually brought in after the mechanics are laid out. In the BS one can see the purpose. It is the purpose and the means that must be forever scrutinized.

  9. As incompetent folks have been appointed to the Supreme Court, the public has lost all respect for that branch of government. That’s not to say that anyone has any respect for Congress or the Presidency either. Offices don’t command respect. Competence does.

    • If there were ‘incompetents’ on the Supreme Court, your most sterling examples would have been Thurgood Marshall, Warren Burger, David Souter, and Sandra Day O’Connor in about that order. The problem with the Court is not incompetence, but bad faith.

    • Ah, the use of that all-encompassing phrase “the public”. No, Doglover, some in the public have lost all respect for the Supreme Court, not all of the public. I for one have not lost respect for it. According to a survey report released earlier this year by the Pew Research Center, a larger number of Americans view the court favorably (48%) than unfavorably (43%). (http://www.people-press.org/2015/07/29/negative-views-of-supreme-court-at-record-high-driven-by-republican-dissatisfaction/).You need to stop assuming that your views are representative of everyone, or even a majority.

      Why are you qualified to judge the competence of those appointed to SCOTUS? I suspect that nearly every individual who has served on the Supreme Court since its establishment in 1789 has been far more competent to serve on the court than you. You provide no reason to give much credibility to your assessment of the competency of Supreme Court Justices.

      • dogfightwithdogma – since the qualifications to be a member of the SC are so low, I feel that I have as much right as anyone to judge the competency of someone to be a SC justice. And since I do read about 3/4s of the rulings of the court (I try to avoid those on riparian rights, etc.) I do get a feeling for the competency of the law clerks working for the justices.

        • I never questioned the right of you or Doglover to judge the competency of SC justices. Of course you have such a right. It is guaranteed by the free speech clause of the First Amendment. I asked what qualifies Doglover to judge their competency. This is a different question. I too read SC decisions, though not as many as do you. I do not see this as a qualification to judge their competency to sit on the bench.

          That there are no constitutionally mandated qualifications to be an SC justice does not mean that a president can appoint just anyone and expect a confirmation. There are preferred qualifications that have become tradition to apply. Every SC Justice has been a lawyer admitted to the bar. With but a few exceptions, the last being James F. Byrnes, SC justices have attended law school where they were trained in the practice and theory of law. So I think that anyone claiming to be qualified to judge the competency of SC justices should have well more than a layman’s knowledge of law, constitutional law in particular. Anyone can claim to be qualified to decide upon the competency of SC justices, but I question the competency of those claiming this if they cannot demonstrate their own competency where it concerns constitutional law.

                • So you willfully ignore my earlier point that just because there are no qualifications in the Constitution does not mean that there are no qualifications applied in the process of selecting SC justices. Just try suggesting that Joe the plumber be nominated to the court. I’ll have a good laugh along with everyone else. There are qualifications used. No President is going to nominate a person simply because they breath. If there are no qualifications used then why have there been no bricklayers, hairdressers, burger flippers, etc. nominated? I am not mentioning these jobs to belittle them, but to point out that no president in his or her right mind would nominate someone who is not competently familiar with the law. I do not need to find any criteria in the Constitution to argue as I have that there are criteria and qualifications applied to the selection of SC nominees by the President and also applied by the Senate when it advises and consents on these nominees.

                  I repeat there is no tradition of not nominating and voting on SC nominees during the final year of a President’s term. Your point about Brennan does not refute my argument, given the other examples that were also provided. At best, one might make the attempt — though it would be a rather silly one — to argue that the refusal of the Senate to hold hearings on Merrick Garland is the start of a tradition. But it is in no way the actual upholding of an existing tradition.

                  • dogfightwithdogma – if I remember correctly, the majority leader of the Senate sets the calendar for body, Same thing happened when the Democrats were in control.

  10. issac – “but ask yourself what is the purpose of leaders if not to create a better environment for the people?”

    Well, let’s see, how about just defend the constitution and protect our rights? isaac, I don’t need the govt. to create a better environment for me. That is up to “we the people”. But that is the difference between you and me, you need/want govt. in your life. But don’t sweat it, you will eventually win since you and your ilk are the true traitors who are truly buying peoples votes at the cost of their freedoms and rights. A true patriot teaches self reliance, not steeling from others.

    • So, arm up ‘True Patriot’ and go shoot yourself something for dinner. You might reflect on the origin of the Constitution and all that we hold sacred and holy. All this was designed to create and maintain a better environment for the people. It is the interpretation of what is better that is the issue. Not too long ago in some parts of this great land it meant stringing up people to maintain the balance that the founding fathers, god, and Sheriff Porkpie told us was necessary. In order to comment of these great inflexible and interpreted only one way documents, you have to be able to think past your gun.

        • He’s pointing out the obvious: you’re a consumer of services provided by public works authorities and your local police. The notion you don’t want ‘government in your life’ is a silly conceit.

          • What’s silly is the idea that the govt. put food on my table.The govt. role should be very limited. Unfortunately over years of progressive stealing, it has infected itself into all our lives and spawned a population of lazy dependents that feed off the others who work.

            Like I wrote, don’t fret, since you are winning. The Trump election is just a blip in the downward trajectory of our decline. Getting the lazy to feed off of the working class is an easy sell by tugging on one of mans worst and traits. The progressive cog has many teeth and once in place are nearly impossible to remove as we will see with Obama care. So raise your glass and toast every time another American starts sucking from the govt. teat.

            • There are some troublesome programs (SNAP, Section 8, TANF), but the vast bulk of the expenditure is on programs for the elderly and disabled. Much of the rest is subsidized medical care or temporary income replacement for the unemployed. No, you’re not going to get a majority of wage earners to agree to abolish Social Security and Medicare via referendum. You’re not likely to get them to abolish Medicaid or unemployment compensation, either.

      • So Joe, let me get this right, the govt steals my property by forcing me into Social Security/medicare, and when I am eligible to get it back, I should feel bad? I all for not putting in and letting me take and invest my own property. I don’t need the govt. to steal it so they can give it to the lazy.

            • No, Jim22, StepStepSteponToads had it right. I would also add that paying duly enacted taxes is an act of a patriot. Whining about paying taxes can also be an act of a patriot. The point is there are multiple factors that go into determining if one is a patriot. There is not a list with one set of criteria that is the litmus test for patriotism.

                • No, that is the mark of someone who is self-interested. As most people are. Paying your taxes voluntarily is a mark of civic spirit. It’s what differentiates Chile from Argentina.

                  The problems arise when the tax code is used to build patron-client relationships between politicians and business (the economic sectors tied to the political process this way include real estate and extractive industries), when public funds are used to build patron-client relations between politicians and discrete economic sectors (the big beneficiaries here are public employee unions, education, and social work), and when the regulatory aspect of the state is used to assist economic sectors (and here the big beneficiaries are the legal profession and finance and credentialing programs in education.

                  • Toads – taxes are used to pay for a lot of things I do not support, therefore I pay the least I can get away with. I have long advocated a checklist on your tax form that would require your taxes to go to only those marked entities. No money could go to any unmarked area. Each area/entity would have to live on the money it had gotten that year. Think of the fun of HHS going out and begging tax payers to mark the box for welfare checks. Or Congress having to come to its voters to ask they tick the box for Congress.

  11. The reality of this situation can be seen through the eyes of legal historical self gratification or as what it really is, power mongering by the Republican traitors in Washington at the expense of the people. On record, preserved for all time, are statements by traitors like Mitch McConnell and other Republicans stating that regardless of whether it is good for America or not, if it comes from Obama it will be opposed, obstructed, and if not stopped, delayed.

    This is a vastly more interesting and important interpretation of what is going on. For the past six to seven years the American people have come in second behind the treasonous power mongering strategies of the Republican party. It’s all legal, by the way, but ask yourself what is the purpose of leaders if not to create a better environment for the people?

    This sick interpretation of government has just eclipsed itself with Trump and his $7,000,000 photo opportunity as defender of the working man as he fills position after position with Wall Street cronies, financial backers, and other elite. This could be a band aid on an open sore that just might evolve into what is really necessary, cooperation between government, labor, and corporate as in Germany or more of the same grandstanding by the country’s greatest charlatan ever.

        • dogfightwithdogma – there is nothing in the Constitution setting a time table for filling the vacant seat of a SC justice. There has been a tradition of not filling a vacant seat in the last year of the President’s rule, allowing the next President to fill the seat. The Senate is big on tradition. Senator Byrd was the best at knowing every little trick you could use to move or delay something.

          • Paul — I am aware that there is no time table in the Constitution for considering and voting on a nominee for the Supreme Court. But since you seem to be fond of tradition and claim that the Senate is as well, then let us follow that line of thought.

            It is rare for a SC vacancy to be filled during the final year of a presidential term. But this is much more a result of the fact that it has been rare that a SC vacancy has occurred during a president’s final year. There has been no tradition of president’s intentionally not nominating someone during their final year in office, nor has there been a tradition of the Senate intentionally choosing not to consider and vote on the nominee during a president’s final year in office. The so-called tradition you cite is not actually a tradition.

            In the 80-year period which Republicans have cited — and I presume to which you are referring — only five presidents have had the chance to fill a seat on the Supreme Court bench in an election year, and all of them took it.

            Let’s take a look at each.

            Benjamin Carodozo was nominated on February 15 ,1932 by President Herbert Hoover to replace Oliver Wendell Holmes, who retired on Jan. 12, 1932. Cardozo was confirmed by the Senate nine days after his nomination.

            After the death of Pierce Butler in 1939, President Franklin D. Roosevelt nominated Frank Murphy on January 4, 1940. Murphy was confirmed 12 days later on January 16.

            In 1956, President Dwight D. Eisenhower made a recess appointment of William Brennan. Brennan was nominated and confirmed after Eisenhower won reelection.

            In 1968, President Lyndon B. Johnson — who announced he would not run for reelection — made two unsuccessful nominations. He picked sitting Justice Abe Fortas to replace retiring Chief Justice Earl Warren, and Homer Thornberry to replace Fortas. Facing strong opposition from Congress, Fortas asked his name to be withdrawn and Thornberry followed suit. Warren delayed his retirement.

            Finally, the case of Justice Anthony Kennedy, who was nominated in late November 1987 and confirmed by a vote of 97-0 on February 3, 1988, only two months after President Ronald Reagan nominated him. Though the nomination occurred only shortly before the beginning of what constitutes Reagan’s last year, only an obtuse fool would argue that had the seat become vacant in January of 1988, Reagan would have felt tradition-bound to not nominate anyone for the vacancy.

            Even in 1968 — the clearest parallel to 2016’s Supreme Court scuffle — the Senate held confirmation hearings for Fortas. What the Republicans have done in not considering Obama’s appointment of Merrick Garland is not an act of tradition, but rather an act of political obstructionism.

            The claim of an 80-year precedent is fundamentally misleading. There is no unambiguous tradition here, only something that Republicans have mischaracterized as a tradition to serve their political agenda. What we have is a set of rare circumstances which do not rise to the level of an established tradition.

            What is a clear example of tradition is that the Senate has typically acted on SC nomination’s in a timely manner. On average a nominee has been confirmed, rejected or withdrawn in 25 days. This is a true tradition, and one this Senate shamed itself by ignoring.

            • BO does not have any claim on the attention of Congress or on the co-operation of Congress. If they want to tell him to get stuffed, that’s their prerogative. The left was willing to engage in a dishonorable campaigns of defamation against Republican nominees. Anything short of that is a courtesy extended to you. Take the courtesy and quit whining.

              • I never asserted that BO had any such claim. What Democrats did concerning previous Republican nominees does not justify the Senate failing to act this time. One bad behavior does not justify or excuse another bad behavior. At least those Democrats held hearings and a vote was had on the nominee. (I am assuming you are speaking here of Clarence Thomas and/or Robert Bork). I am not whining. I am making an argument. But then I suppose this is a foreign concept to you.

                • One bad behavior does not justify or excuse another bad behavior.

                  There is no ‘bad behavior’. There is behavior that’s inconvenient to you. You’re puerile enough to equate the two.

            • dogfightwithdogma – Brennan and Kennedy don’t count. Roosevelt thought he was going to live forever and Kennedy was nominated in the prior year. On the 25 day scale, he would have been affirmed before the end of the year. Tradition is sometimes broken, but when it is, all hell breaks loose.

              • Why does Brennan not count? Simply because you say so? Sorry, but this is not good enough for me to accept your dismissal of this example. How long Roosevelt thought he was going to live is totally irrelevant to my argument or the example I cited. But let’s go ahead and take these examples out. That still leaves the others I cited. And they clearly establish that there is no tradition for the President or Senate to leave an SC seat open during a president’s final year so that the next president could make the choice. I repeat that had the seat Kennedy filled come open in January of 1988 rather than November of 1987, Reagan would have nominated someone, probably Kennedy, and the Senate would have confirmed. There is no credible or logical reason to assume that either Reagan or the Senate would have proceeded on the basis that there was a tradition not to name a nominee during the final year of a president’s term. You have failed to establish that the tradition you claim actually is a tradition. In every example I submitted the Senate acted during the President’s final year. They did not assert any tradition to withhold consideration and vote on the nominee.

                • dogfightwithdogma – Brennan doesn’t count because he was a recess appt to begin with and really appt in the next administration. He could have been overlooked. However, I do not like the idea of recess appts. I think the Senate actually doesn’t recess anymore so their can be no recess appts.

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