It’s time for an amendment on filling Supreme Court vacancies
The precedent for not filling a Supreme Court vacancy during an election year is only a precedent. It should be guaranteed by a constitutional amendment
It took less than 24 hours after the death of Justice Ruth Bader Ginsburg for Senate Majority Leader Mitch McConnell to release a statement that “President Trump’s nominee will receive a vote on the floor of the United States Senate,” and for President Donald Trump to tweet that they will work to fill the nomination “without delay.”
In the coming weeks, we are sure to hear and read arguments — some merited, some overblown — for why this move is hypocritical relative to four years ago and how it could be fatal for a nation that is teetering on the edge. However, it is important to remember that the precedent for not voting during an election year is only a precedent. It needs to be guaranteed through constitutional amendment.
The Constitution provided the basic framework for the judicial appointment process — the president has the power to appoint and the Senate must confirm — but the more minute details of how and when this process gets accomplished has varied over time. For example, it is only recently that Republicans invoked the nuclear option for a Supreme Court nomination, requiring only a 51-vote majority to confirm rather than the usual 60.
Michigan State law professor Brian Kalt has recently noted that 10 Supreme Court vacancies have arisen during a lame-duck period in U.S. history. Of these, four were filled after inauguration, three were filled during the lame-duck period when the party stayed in power, and three were filled during the lame-duck session after the party shifted. Importantly, two of the last three were also confirmed with unanimous consent.
The benefits of this precedent are clear and have been articulated by those on both sides of the aisle. In 1992, then-Chairman of the Senate Judiciary Committee Joe Biden (yes, that Joe Biden) advocated for it in a floor speech:
“Should a justice resign this summer and the president move to name a successor … a process that is already in doubt in the minds of many will become distrusted by all. Senate consideration of a nominee under these circumstances is not fair to the president, to the nominee, or to the Senate itself. … As a result, it is my view that if a Supreme Court Justice resigns tomorrow, or within the next several weeks, or resigns at the end of the summer, President Bush should consider following the practice of a majority of his predecessors and not — and not — name a nominee until after the November election is completed.”
More recently, Sen. Lindsey Graham, R-S.C., the current chairman of the Senate Judiciary Committee, said this:
“I want you to use my words against me. 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.”
Thus, not filling a Supreme Court vacancy during an election year is a good idea that has been encouraged by both sides when they are not in power, but it is nothing more. While the precedent is strong, there is no legal obligation to adhere to it, and the party in power likely won’t adhere to it unless they view it as being politically advantageous. For example, some have indicated online that the Trump campaign could use this issue as a get-out-the-vote in the event that Trump decided to abstain from making a nomination.
Adding a confirmation hearing to an unprecedented and ugly election year will further politicize an institution that was created to be inherently apolitical. As Sen. Ben Sasse, R-Neb., noted during the Kavanaugh hearings, it’s time to stop talking about Supreme Court justices as if they are wearing blue and red jerseys. A constitutional amendment that prevents Supreme Court appointments during an election year is a first step to making that a reality.
Breck Wightman is a public affairs doctoral student at Indiana University and a graduate fellow at the Rumsfeld Foundation. His research centers on public personnel and civil service reform. He holds a master of public administration from the Romney Institute of Public Service and Ethics at Brigham Young University. Follow him on Twitter @GBWightman.