Lies Republicans Tell: Supreme Court Confirmations were Bound by Senate precedent

By Bob Leipold

When we hear news of major opinions from the US Supreme Court – overturning Roe [1]; gutting the Voting Rights Act [2]; undermining governmental regulation of guns [3]; granting presidents, including Trump, extraordinary immunity from criminal prosecution [4] – it is worth reminding ourselves how we got here.  Would things have been different if Merrick Garland had been on the court instead of Amy Coney Barrett?

At the time, Senate Majority Leader Mitch McConnell defended his inaction on the Garland nomination and the rushed confirmation of Barrett by claiming he was simply following Senate precedent.  However, in neither case was that true.  There was absolutely NO precedent for the Senate refusing to consider a nomination made as early as March in an election year, and there was absolutely NO precedent for the Senate holding confirmation hearings when a vacancy and nomination occurred as late as September of an election year. [5]

Lie:  “All we are doing is following the long-standing tradition of not fulfilling a nomination in the middle of a presidential year.”  – Mitch McConnell, March 20, 2016 [6]

In 2016, the Republican-controlled Senate refused to consider a nomination made by the Democratic president in March of an election year.  Pennsylvania’s own Senator Pat Toomey explained: “When power is divided during a presidential election year, the Senate’s general practice has been to leave open a Supreme Court vacancy so that the voters may speak and possibly resolve the disagreement created by the division.” [7]  He claimed that seven times in U.S. history (a) a Supreme Court vacancy arose in a presidential election year, (b) the president nominated someone before the election, and (c) the White House and the Senate were controlled by different parties, but only two nominees were confirmed.

In two of the seven cases (Quincy Adams, Buchanan), no nomination was made before the election, so they tell us nothing about the Senate’s “general practice”.  One recess appointment (Eisenhower) also tells us nothing because the Senate was not in session to consider a nomination made only 22 days before the election.  Already the seven precedents are down to four.

The Senate did not act on a nomination made by Millard Fillmore in August of an election year.  Had Obama not nominated Merrick Garland until August, this would have been relevant, but Obama’s nomination was made in March, a full five months earlier than Fillmore’s nomination.

John Tyler’s initial nominations for two vacancies were rejected by the Senate in January and June; additional nominations and renominations were also rejected in June.  This suggests a precedent for holding confirmation votes as late as June in an election year.  Then, despite Tyler being the lamest of lame ducks (he was not even a candidate in the 1844 election), his final nomination for one vacancy, made after the election, was confirmed by the same Senate that had repeatedly rejected his previous nominations.  This confirmation came even though the Whigs had lost control of the Senate to the Democrats and the Whig candidate for president had lost to the Democratic candidate James Polk in the recent election.  (Tyler’s nominations are considered to have occurred with a divided government because the Whigs, who controlled the Senate, had expelled Tyler from the party early in his presidency.)

In the final, most relevant case, Democrat Grover Cleveland nominated a new Chief Justice in April of an election year; the nominee was confirmed by the Republican Senate in July of that year.  This case most closely matches 2016 with respect to the timing of the nomination, the party of the president, and the party controlling the Senate.

To summarize, three of Toomey’s seven precedent-setting cases are completely irrelevant.  While the Senate did not consider one nomination made in August, they have held confirmation votes (one affirmative) as late as July.  While there is clearly precedent for considering and rejecting a nominee in an election year, there is absolutely no precedent for refusing to consider a nomination made as early as March.

Lie:  “This confirmation process falls squarely within history and precedent. …  History shows that when Supreme Court vacancies arise in presidential election years, the outcome hinges on whether the same party or different parties control the presidency and the Senate. …  The circumstances before us today have led to confirmation every single time except one nominee with financial scandals. … This process has been precedent-backed at every step.”  – Mitch McConnell, October 16, 2020 [8]

In 2020, the Republican-controlled Senate raced to fill a Supreme Court vacancy that arose less than two months before an election with a candidate nominated by a Republican president.  Note that this, too, was an election year, and the nomination came much closer to election day than it had in 2016.  Republicans said things were different this time because the presidency and the Senate were controlled by the same party.  As Toomey explained, “While there is a presidential election this year, the White House and the Senate are currently both controlled by the same party.  The Senate’s historical practice has been to fill Supreme Court vacancies in these circumstances.” [7]  No, it hasn’t, because these precise circumstances had never occurred before.

Toomey claimed that seven of eight nominees had been confirmed under these circumstances.  However, all but two of those confirmed candidates were nominated by the end of March and all were nominated and confirmed by the end of July.  There is no historical precedent that addresses a vacancy and nomination occurring as late as September, less than two months before an election, especially an election in which early voting had already started in some states. [9]

With no historical precedents to justify the Senate’s actions in either 2016 or 2020, we are left with the most obvious explanation – a hypocritical, craven, political power-grab.  McConnell, Toomey, and the Republican party should stop pretending there was a high-minded, principled justification for their actions.
 
McConnell could not, of course, have done this by himself.  The support of Republican senators including Toomey is a stark reminder of the importance of maintaining a Democratic majority in the Senate.  Remember this history when the next big Supreme Court decision is announced and when it’s time to vote in November.

REFERENCES

[1]  "Supreme Court overturns Roe v. Wade, ending right to abortion upheld for decades" NPR All Things Considered, Nina Totenberg and Sarah McCammon, June 24, 2022.  Article

[2]  "Brnovich: A Significant Blow to Our Freedom to Vote" League of Women Voters blog, Sep. 2, 2021.  Article

[3]  "Supreme Court revisits the scope of the right to bear arms in the wake of latest mass shooting" CNN. Ariane de Vogue, Updated November 7, 2023.  Article

[4]  "US Supreme Court rules Trump has broad immunity from prosecution" Reuters. John Kruzel and Andrew Chung, July 1, 2024.  Article

[5]  To ensure there would be no accusation of cherry-picking from liberal sources, I have taken much of this information from a National Review article, supplemented with additional reading and research.  "History Is on the Side of Republicans Filling a Supreme Court Vacancy in 2020" National Review. Dan McLaughlin, August 7, 2020.  Perhaps the discovery that an article purporting to defend McConnell's decisions on the grounds of precedent contained evidence to the contrary should have come as a surprise, but somehow it didn't.  Article

[6]  "McConnell, White House spar over Supreme Court nomination hearings" Fox News, Updated March 20, 2016.  Article

[7]  "Toomey Statement on Supreme Court Vacancy" VoteSmart. Pat Toomey, Sept. 22, 2020.  Statement

[8]  "Proud to Support Judge Barrett’s Confirmation and Proud of this Precedent-Backed Process" Web site of Mitch McConnell, Republican Leader, The Newsroom, Oct. 16, 2020.  Press Release

[9]  "Election 2020: When early voting and mail voting for president begins in every state" USA TODAY. Joey Garrison, Sep. 26, 2020.  Article