Conservative lawmakers are unlikely to allow President Obama to replace Justice Antonin Scalia, who died Saturday.
During the Republican debate Saturday evening, Sen. Ted Cruz, R-Texas, said, “We have 80 years of precedent of not confirming Supreme Court justices in an election year.”
That’s not quite true: Justice Anthony Kennedy was confirmed in 1988, an election year. But the situation rarely comes up. A seat has opened on the Supreme Court during an election year only once every few decades.
There does not appear to be an established procedure for handling vacancies that arise just months before an election. As a result, partisans will be free to offer interpretations of the court’s history to buttress their positions on Obama’s eventual nominee.
Kennedy’s 1988 confirmation isn’t a perfect precedent. As Ed Whelan, president of the conservative Ethics and Public Policy Center, argues, that seat on the court had been vacated much earlier — in the summer of 1987. His nomination was delayed into President Ronald Reagan’s last year in office only because Reagan had to withdraw the nomination of Robert Bork. Rejecting Kennedy, and denying Reagan the chance to fill the vacancy before the end of his term, would have left the Supreme Court without a ninth justice for a year and a half.
In 1956, Justice Sherman Minton resigned just weeks before the end of President Eisenhower’s first term. Eisenhower appointed Justice William Brennan Jr. while the Senate was in recess, and when the Senate convened again in 1957 — after Eisenhower’s reelection — Brennan was confirmed.
Apparently, the only recent case comparable to the vacancy created by Scalia’s death arose in 1968, when Chief Justice Earl Warren told President Lyndon B. Johnson he wished to retire during that election year. Johnson nominated Justice Abe Fortas for a promotion to fill Warren’s seat, but Fortas’ nomination met with a filibuster in the Senate. Warren remained on the court.
In general, of course, the president’s nominees are confirmed. According to the Congressional Research Service, the Senate has rejected only 36 nominations to the court out of a total of 160 since 1789.
