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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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