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The Supremes After Scalia
The Court Controversy: Not Unprecedented

The passing of Supreme Court Justice Antonin Scalia—and Sen. Mitch McConnell’s prompt declaration that the Senate would not confirm anyone President Obama nominates to replace him—has set off a furious debate about the historical precedent for rejecting a late-term president’s Supreme Court nominees. So it seems like a good time to revisit Kyle Kondik’s 2014 American Interest essay, “Watch the Courts,” which considered this very question:

Only twice in the post-Civil War era has a President presented with a Supreme Court vacancy failed to fill it before leaving office. The most recent instance was nearly half a century ago, in 1968, when Chief Justice of the United States Earl Warren announced his intention to retire upon the confirmation of his successor. Outgoing President Lyndon B. Johnson nominated Justice Abe Fortas, his longtime friend and confidante whom he had appointed to the court in 1965, to replace Warren as Chief Justice. The Democratic-controlled Senate refused to confirm him, though, and Johnson withdrew his nomination in October 1968, along with the nomination of Homer Thornberry, a Federal appellate judge Johnson had nominated to replace Fortas. Warren stayed on as Chief Justice, and it fell to Johnson’s successor, President Richard Nixon, to fill the seat. Nixon picked Warren Burger as Chief Justice.

Prior to that, one has to go back to 1881 to find a court vacancy that was filled not by the sitting President but by his successor. President Rutherford B. Hayes made the controversial nomination of Stanley Matthews in 1881. The nomination came near the end of Hayes’s term, so the Senate did not act. New President James A. Garfield renominated Matthews, and he passed through the Senate by a slim 24–23 vote.

Kondik foresaw “a possible, and an historic, showdown over the Supreme Court” should a a vacancy open up during President Obama’s last two years in office, noting that a GOP refusal to consider any of President Obama’s nominees “would be just the latest escalation in a procedural arms race in the Senate.”

Ultimately, however, procedure and precedent—while important—are probably the wrong lenses through which to analyze the current situation. Due in part to Congressional polarization, in part to the weakening of the executive branch, and in part to the Supreme Court’s own increasing assertiveness, the nine Justices have more influence over American political life today than they have at almost any other time in our history. The stakes for replacing Justice Scalia could not be higher, and partisans on both sides understandably want to maneuver in a way that will increase their odds of achieving a favorable Supreme Court majority. Does anybody doubt that if Mitt Romney were president, Democrats held the Senate, and Justice Ruth Bader Ginsburg passed away, Republicans and Democrats would be making very different arguments today?

Though the debate in the coming months may be dominated by arguments about historical precedent and Senate procedure, it is ultimately a debate about power, and who gets to wield it.

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  • WigWag

    Exactly right on all counts. The fact that replacing the overrated Scalia is destined to be so contentious is a sign that the Supreme Court has achieved an out-sized influence that undercuts American democracy. As much of a blow-hard as Scalia was, he would surely agree with that.

    • Andrew Allison

      You mean because it declines to permit an out-of-control President to flout the Constitution?

  • FriendlyGoat

    If Obama nominates from those who the Senators (including Rubio and Cruz) already confirmed to appeals courts in 2013 by unanimous consent, I think the stonewalling is going to backfire.

    • Blackbeard

      Broadly there are two directions Obama could go in. One choice would be to nominate a generally acceptable moderate, perhaps, as suggested above, a judge who has been recently confirmed without significant opposition. It would be difficult for the Republicans to oppose such a nomination and if Obama is truly concerned about the operations of the Court this would be a smart choice.

      Another option would be to nominate a more extreme candidate, someone the Republicans would almost have to oppose. To maximize the political impact the nominee should probably be a minority or a woman or ideally a woman minority. If Obama is primarily concerned with helping the Democrats in the coming elections this would be his best choice.

      Anyone want to bet which way Obama goes?

      • FriendlyGoat

        I think one of those confirmed appellate judges is a female. Another one is a fellow who was born in India and raised in Kansas. To me, they are the smartest choices for Obama. One of them might get confirmed which would be a big win. If such a nominee is not confirmed, it would give the Dems even more election fuel—-exposing the GOP as being two-faced ideologues hired only to produce corporate-favored decisions from the courts.

        Those hacks can talk about “rule of law” and other such crap all day long, but there is such a thing as being caught with their pants down. I think it’s on the way.

        • Blackbeard

          You are probably thinking of Patricia Millett and Sri Srinivasan, both recently appointed to the DC Court of Appeals and both well respected ideological moderates. They would be examples of my first choice above: difficult for Republicans to oppose but probably not far enough left for many progressives.

          Loretta Lynch would be an example of the second choice. Republicans would have a hard time NOT opposing her but as an African-American and a woman such opposition might be politically costly.

          I predict Obama goes with Lynch or somebody like Lynch.

          • Dhako

            I think Obama should ask quietly the Republican’s head-bangers at the Senate, whether they are ready to hold a hearing on his nominee or not? And if the answer is firm No. Which means, not only is he not going to get a confirmation of his choice, but he will not even get so much of a judicial hearing of his candidate. Then he should simply nominate someone who is a female minority like Loretta Lynch (the current AG), who is also a reliable Left-wing in ideological terms. And then he should go to town with his choice against the Republican’s refusal to hold a hearing on her.

            And, this of course, will be a decent recruiting banner for the African-American’s voters for Hillary with Obama on her side. Hence, if the Republican wants to endanger their hold of the Senate, then I would seriously advise them to play this game in this manner.

            Of course, the result will be something they will have hard time in computing come November. But, the Republican can always console themselves with the thought that says the polls are forever skewered towards the Democrats, even if final tally of the elections shows them losing on all front, particularly the Senate and the presidency.

          • FriendlyGoat

            I doubt if Obama will ask any of them anything. I believe he will just appoint someone reasonable, invoke public opinion in a dozen different ways and invite both Hillary and Bernie to pile on, which they absolutely will. The longer the Republicans “hold out”, the worse they will look.

          • FriendlyGoat

            There is also Jane Louise Kelly.

          • seattleoutcast

            Yes, we definitely need more women, because social justice.

          • FriendlyGoat

            Women are half of the country. Having four of them on the Court is not exactly an “outrageous” idea.

          • seattleoutcast

            No, of course not. But appointing them because they are women is an outrageous idea, and that is all you social justice types are interested in.

          • FriendlyGoat

            I’d settle for a good moderate, male or female. For instance, one does not have to be Ralph Nader or Gloria Steinem in order to understand that a corporation is not really a person with “constitutional rights”. (One does not even have to be a lawyer to understand that.)

        • Blackbeard
          • FriendlyGoat

            Uh, no.

        • seattleoutcast

          We’ll see how it works out, but calling the other side hacks is quite ad hominem.

          • FriendlyGoat


          • seattleoutcast

            This is their chance to get a majority and the republicans are thinking of taking away that opportunity.

            I think the republicans have learned that caving in to scorn and derision from the left leaning media gives no benefits whatsoever. So who cares if the left goes ballistic and they’re caught “with their pants down.”

          • FriendlyGoat

            The Republicans are “thinking” of taking that away. The Republicans are “thinking” of losing not only their credibility but their seats.
            You are proposing a crime of “confiscation” which has not exactly occurred yet. If/when it does, the perpetrators will have already confessed.

          • seattleoutcast

            What is the crime? Do you understand metaphors? The “Weapon of choice” is using the court to pass legislation. Confiscation means that republicans have taken your “weapon of choice” away. It is not a crime not to appoint a justice. The Constitution says the Senate has the right to advise. It isn’t a simple coronation. Given that Obama will appoint another uber leftist anti Constitutionalist, the republicans are using one of the checks given to them in our founding document. And, I didn’t see any democrats get upset when Schumer advised appointing another justice for Bush 18 months away from the end of his second term.

            So, no “crime” has been, nor will be committed if the Senate refuses to appoint a justice. The reason you’re upset is for the very reason stated above. The democrats smacking their lips to get a loaded court (while the body isn’t even cold yet–shame, shame, shame) and the republicans are taking away that opportunity.

          • FriendlyGoat

            Do you not believe that Republicans believe in using the court to “pass legislation”. How do you suppose they got rid of campaign finance legislation, voting rights legislation, and gun legislation? By passing repeals? How do you suppose they hoped to get rid of Obamacare twice? How do you suppose a corporation has been assumed to be a person with constitutional rights—-you think “the folks” passed that?

            I’ll wait for how this plays out, including who Obama nominates, the excuses given by McConnell to stonewall and the shenanigans, if any, that John Roberts attempts to perform on cases now pending. I think your guys are going to find this less a cakewalk than you think. We’ll see.

          • seattleoutcast

            Ahhhh, the stonewalling and shenanigans! Let us not forget Obama wanted to filibuster Alito. Can you forget what your side did to Bork, or to Thomas? No, wait, that was legit because, because….democrats are always right!

            All your high-minded brow furrowing, all your moralizing and indignity is simply a facade for a naked desire to get another justice on the court. You’re trying to shame republicans because that worked in the past. You once had control of the media and that scared republicans. But, alas, you’ve lost control.

            As far as the courts are concerned, your side made them the high-stakes game that they are today. Frankly, I’d like to see a few states reject supreme court decisions and knock the court down to a less vaunted position. By the way, they way you mention “getting rid of campaign finance legislation” and “voting rights” is hardly objective. Enough with Citizens United. Labor unions can collect money, too. Any “body” can collect money, not just the corporations (the corporations made more powerful under Obama, thank you very much.)

          • FriendlyGoat

            Well, you are correct that Democrats are always right about who should be on the Supreme Court and who should not. The difference is whether you get decisions that ordinary people can be proud of for other ordinary people—–or you don’t.

  • Dhako


    So let me guess and say a nation that so divided, politically and ideologically, which in turn makes it difficult for them to even agree as to the proper role of the judiciary and such basic governance, has the “all-encompassing-delusion” about what it can teach to others in-terms of how they should organised themselves internally?

    Do you, Walter, now see how absurd others will consider the constant bleating from the Beltway in-terms of Washington telling the likes of China and others, as to how to organize themselves, much less about the likes of Beijing taking any lesson about how China should “emulate” the “glorious exceptional-ism” of US’s faction-riddled internal politics.

    Of course, US’s denizens may genuinely be so absurdly delusional as to expect that others are really taking lessons of how to organize themselves along the lines of the conduct of the current Washington’s farce, in which GOP’s know-nothings-teeming-blowhards are pitched against Democratic’s snobbish elites, who think that GOP’s supporters in the “fly-over-states”, genuinely diminishes the national collective intelligence; but when China sees the unending political tug-of-war in Washington, whereby the basic governance of the nation is set-aside for a political foot-ball between two competing power-centers, they will simply say to themselves: Thanks, but No thanks.

    For, we in China, will rather remain as we are currently till we are ready internally and economically. Furthermore, do you now see how the very notion of democracy is really having its name sullied where others are concern, particularly when those merchants of “democracy abroad” within the Beltway start saying to the world that any nation that wants to develop, economically and socially, should develop this kind of “governance-by-gridlock”, in which the American’s political establishment seems to have perfected in recent decades?

    Hence, lets hope, the likes of American’t National Endowment for Democracy (NED) and the State Department’s democracy promotion outfits, will simply not mention American democracy in its current form, particularly as something resembling that old hoary fairy-tale assertion, as that of a “Beacon light on a Hill” for any nations they wants to buy the idea of democracy, or even to that of American’s variety.

    • Tom

      Ah, finally. So, tell me, where do you stand in the Communist Party, sir, you who steadfastly ignore every problem in China? Motes and beams, bud.

      • Dhako

        On the contrary, Tom. You see, Chinese are not so delusional as to think that others should really chin-wag endlessly about how they should emulate the Chinese political set-up. Even, if some of the failing democracy around the world, mostly in the global south, should have take a leave from the Chinese book, by reforming their economies and allowing a government-guided (or state-controlled levers of economical direction) till they are very much out of the poverty-trap, like the manner Chinese have done it.

        However, the Chinese accepts the notion of different folks for different strokes (as it were). Hence you will not find any hubris on the part of China thinking that they know what is best for every one. However, the tragedy of our American’s friend, is that, while their own political house is in disarray and effectively is gridlock to the eye-ball, will still think others should really take a lesson in basic governance from them.

        Hence, the farce of seeing Beltway’s chin-waggers telling the likes of China how to do politics, while right there in Washington DC, the mere idea of allowing Obama to govern without others ideologically obstructing him, will be consider as a political blasphemy. This is the reason I mentioned the other day, the biblical proverb of seeing other’s short-comings while ignoring the constant failure of your own. For China has no desire to call the motes in American’s eye, while, quite assuredly, she is having a mighty struggle to remove the beams that is lodged in her own eyes.

        Consequently, its US, with its boast of exceptional-ism, which in turn, never saw a nation that they didn’t wanted to straighten it out, even, if the “crooked timber” of their own nation’s political reality is crying out for someone out there, to either straighten it out at best. Or failing that, then, at worse, to at least lessen its crookedness to a tolerable degree. This is what I was getting at, in my analysis.

        • Tom

          The existence of The Confucius Institutes argues otherwise.
          As well as yours.

  • sacip

    WWND=”What would Nino do?”=fill the vacancy right away.

  • jeburke

    The underlying problem is that over the past 50-60 years, the Court has become as much a sort of Council of State — effectively a third political branch — as appellate tribunal. Not surprisingly, then, political parties are animated to fight for Court seats, much as they battle for Senate seats. What brought this about? Several factors but mainly the decision of organized liberals to wage what has become known as “lawfare,” engineering long-term efforts to bring and win cases to achieve changes by judicial decision that they could not win (or thought they couldn’t) via “normal” politics.

    • Frank Natoli

      achieve changes by judicial decision that they could not win (or thought they couldn’t) via “normal” politics
      Like Roe v Wade?
      Like finding that consensual sodomy was a constitutionally protected right?
      Like Duke vs Griggs Power, where HHH legislation was found to require racial quotas?
      Ad nauseam?

      • seattleoutcast

        And herein reveals the problem. Thanks for sharing.

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    • Andrew Allison

      Um, doesn’t the US Constitution establish three branches of government? I wonder whether attempts by the other two branches to “pack” the court are really new. What appears to me to have changed is the effort to subvert the Constitution by having the Supreme Court make, rather than apply the law.

  • Frank Natoli

    Does anybody doubt that if Mitt Romney were president, Democrats held the Senate, and Justice Ruth Bader Ginsburg passed away, Republicans and Democrats would be making very different arguments today?
    None of the factors above has anything to do with denying Barack Hussein his most important nomination. The sole factor is the apparent success of the Trump candidacy. Prior to Trump, McConnell et al were Obama lap dogs. With Trump, McConnell et al sense a new marshal in town. This is what happens when a slight majority of Americans think the Constitution has been superseded by a guy with a pen and a cell phone. Happy?

  • Anthony

    So, here we are! “It takes no feat of imagination to guess how the debate about replacing Justice Antonin Scalia will take shape.” The political stakes are clear: “the Republicans have held to a majority on the Supreme Court for almost a half century, since the Burger Court of the early 1970s. Changing the balance of power would be seismic.”

    “Replace Justice Scalia with a Democratic nominee, and the Courts recent conservative rulings, which have limited voting rights and hobbled campaign finance reform, could go by the wayside.”

    “It is obviously good politics for Majority Leader McConnell, Senator Cruz, and anyone else courting the conservative base to promise not to let the Supreme Court flip.” So, here we are!

  • stefanstackhouse

    The Republican senators ought to consider that they may be making a huge miscalculation. If Either Trump or Cruz is the nominee, which is appearing likely, there could just possibly be a Democrat landslide, and enough senate seats could change hands to give the Democrats a solid majority. The Republicans might end up facing the prospect of an even more left-wing Democrat President appointing a justice who is far more extreme than anyone that Obama might nominate, and they would have far less power to block him/her. They could very well live to bitterly regret their stupid hubris and folly.

    (Note to Republican readers: Yes, I know you are cocksure that there is no possible way that what I described could happen. The news for you is that this is indeed possible.)

    • MartyH

      I’d say that the Democrats have as least as much of chance as melting down as the Republicans. General Flynn, President Obama’s former top military advisor, said that Hillary should suspend her campaign while the FBI investigates her.

      So Hillary may be forced out of the race at some point, leaving the Democrats with one heck of a dilemma: Nominate Bernie Sanders whose polls drop five points every time time he says that he’s going to raise everyone’s taxes; or select someone like Warren or Biden at a brokered convention, showing that there is no room for democracy in the Democratic party. Heck, that’s already true: Hillary has 40% of the votes and 90% of the delegates.

      Assume its Trump/Bernie, so Bloomberg gets in. His support base is going to be largely Northeast, coastal, liberal-conservatives aren’t going to vote for a NYC gun grabber-so he’s going to suck votes away from Bernie. Just like in 1960, the Republican gets 40% of the vote and wins the Presidency. Even if it goes to the house, the Rs will win because they control more state delegations than the Democrats. And that’s the best case in this scenario-Cruz could demolish Sanders in a one on one debate.

      Trump will beat Sanders. Cruz will beat Sanders. Rubio will beat Sanders. Democratic voters may not care about Hillary sharing our secrets with the world, but the security apparatus does, and they have a lot of ways to voice their concerns, as General Flynn did in the article I referenced. The longer Hillary’s campaign goes, the louder these calls are going to become.

    • JollyGreenChemist

      All the GOP needs to win the White house now is to make the election a referendum on the 2nd Amendment.

  • Robert Burke

    But Journalists, having been taught by the funding of Progressive Decline Worldview, will spin the story any way they want… since Progressivism is founded on Hegel’s lie that no Proposition can be proved true… so they, Journalists in America, will pull the “Nation in Crisis” levers until they get what they want, and have no reason to recall to anyone’s mind historical facts contrary to their lies.

    The solution? Defund Progressive worldview education in Journalism Schools. It stops lying, because if you replace the pedagogy with Western Enlightenment, then truth matters… vs. Prog lies matter.

    PROPOSED: Congress shall make no law respecting the establishment and support of the anti-religion of Progressivism, and shall make no funding of Progressive education, nor shall it fund Progressive training in government, military or any other agency… since Progressivism is at eternal, deceitful, hidden war with individual rights, with life, with liberty, with happiness, with logic, with truth, with economy and with laws.

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