While we have a break covering the presidential primaries, here’s a look at the pressing issue of the Supreme Court vacancy left by Justice Antonin Scalia after his passing. This two-part article (See Part 2) is intended to give both sides of the current Supreme Court nomination process. The first will support the Democratic argument that the President has a right and duty to nominate Supreme Court justices, and the Senate has the right and duty to give that nomination a fair hearing. The Democratic argument is based on an examination of historical precedent with regard to the Supreme Court Justice nomination process.


The Republican argument for not even considering the nomination is what they call “The Biden Rule.” But it should be noted that Senate Leader Mitch McConnell’s pledge not to consider a replacement for Antonin Scalia occurred just minutes after Scalia’s death was announced. It was also days before they unearthed the Biden quote from 1992, referred to by Breitbart:

Biden argued, in part:

…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.

The Senate, too, Mr. President must consider how it would respond to a Supreme Court vacancy that would occur in the full throes of an election year. It is my view that if the President goes the way of Presidents [Millard] Fillmore and [Andrew] Johnson, and presses an election year nomination, the Senate Judiciary Committee should seriously consider not scheduling confirmation hearings on the nomination until after the political campaign season is over.

Powerful stuff. Except. . .(1) the speech was delivered at the end of June, not a third-year earlier, the beginning of February, (2) there was no opening at the time, so even if a Justice had died the next day, it would have taken even more time before a nominee could be chosen and sent to the Hill. This was a statement of philosophy, not intent.

More importantly, the full text of the 1992 speech ends saying the opposite, see the video below.

“Therefore, I stand by my position,” Mr. Biden said. “If the president consults and cooperates with the Senate or moderates his selections absent consultation, then his nominees may enjoy my support as did Justices Kennedy and Souter.”

So the question is, is the nominee, Merrick Garland, a political extremist, or a reasonable judge? To make the point that Garland is moderate, President Obama quoted Republican Orrin Hatch. Here’s the C-Span video of Hatch on YouTube.

“Merrick B. Garland is highly qualified to sit on the D.C. circuit. His intelligence and his scholarship cannot be questioned… His legal experience is equally impressive… Accordingly, I believe Mr. Garland is a fine nominee. I know him personally, I know of his integrity, I know of his legal ability, I know of his honesty, I know of his acumen, and he belongs on the court. I believe he is not only a fine nominee, but is as good as Republicans can expect from this administration. In fact, I would place him at the top of the list.”

Here are direct quotes of five other Republicans praising Garland, when he was nominated for his current court seat. We’ll quote just ultra-conservative Senator Strom Thurmond, to save space.

“I have no reservations about Mr. Garland’s qualifications or character to serve in this capacity. He had an excellent academic record at both Harvard College and Harvard Law School before serving as a law clerk on the U.S. Court of Appeals for the Second Circuit and the U.S. Supreme Court. Also, he has served in distinguished positions in private law practice and with the Department of Justice. Moreover, I have no doubt that Mr. Garland is a man of character and integrity.”

OK, so everybody seems to think he’s a good man. Is it normal to reject a nominee in an election year? No. The truth is that four Justices were approved in election years over the past 60 years—by opposing party controlled Senates.

1988–Anthony Kennedy (Bush)
1972–William Rehnquest (Nixon)
1972–Lewis Powell (Nixon)
1956–John Harlan (IKE)

It is true that the Senate refused to confirm President Johnson’s two nominees–Abe Fortas and Arthur Goldberg–in 1968. But there were no other election-year rejections in the last half-century, and no one else died or resigned in an election year.

How about the time required to confirm a nominee?

Over the past 40 years, we’ve had 14 justices confirmed.

It took an average of 67 days to confirm them. (Obama had 300 days left.)

The quickest was Republican Jerry Ford’s nomination of Justice John Paul Stevens with a majority-60 Democratic Senate.

His choice was confirmed–unanimously–in 19 days.

In our own site, a commenter said Scalia told President Ford that a nominee should get a vote within 60 days, although I have not been able to confirm it.

Scalia actually recommended, when asked by Pres. Ford, that it should take no longer than 60 days to elect a replacement SC justice. The Scalia rule is what Pres. Ford followed.

It’s pretty clear that history and heritage supports Obama’s right to a confirmation vote on his Supreme Court nominee, who was proposed 300 days before the end of his term. And aren’t conservatives supposed to revere history and heritage and precedent?

Acting on Merrick now is also a smart strategic move for the Republicans. It is likely that the Senate will have a Democratic majority next year, since Tea Party candidates who rode the wave in 2010 in swing states will have to face a tough, “on year” electorate this year. Even if the GOP takes the White House, a Democratic majority in the Senate would likely refuse to confirm a Republican Scalia replacement for a year, if the GOP blocks Garland this almost-full-year.

And what if a Democrat wins the White House? With a Dem Senate, the GOP might see someone like Elizabeth Warren slide easily through the confirmation process.

And let’s face it, it’s probably a done deal.

Democrats would only need 14 Republicans to join them to break a filibuster on Garland, and 14 Republican Senators have already agreed to talk to him: Kelly Ayotte, N.H., John Boozman, Ark., Susan Collins, Me., Jeff Flake, Ariz.. Charles E. Grassley, Iowa, James M. Inhofe, Okla.. Ron Johnson, Wis., Mark S. Kirk, Ill., Jerry Moran, Kan., Rob Portman, Ohio, Jim Risch, Idaho, Mike Rounds, S.D., Marco Rubio, Fla., Patrick J. Toomey, Pa.

But before you make up your mind on this issue, see Part 2 of this series here, where we’ll discuss the Republican arguments against Garland’s confirmation.

Supreme Court, Part 2: Congress Should Take Charge

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