Establishing Precedence

The death of U.S. Supreme Court Justice Ruth Bader Ginsburg initiated a frenzy in Washington D.C. as Republicans hurry to fill the now vacant seat and Democrats scramble to find a way to stop the court from becoming a 6-3 conservative majority. The vacant Supreme Court seat adds even more drama to an already heavily contentious electoral race. The polarized state of contemporary politics has become flooded with partisan discussions.

In a recent article in The Hill, Senate Majority Leader Mitch McConnell R-KY was quoted, “You have to go back to 1880 to find the last time a Senate of a different party from the president filled a Supreme Court vacancy created in the middle of a presidential election. That was entirely the precedent,” McConnell said.

Since 1880, there have been nine Supreme Court vacancies filled during the year of a presidential election. Four of the nine were filled by a Senate whose majority was held by a party opposite the president’s. Judge Robert Bork was nominated by President Ronald Reagan but became one of 11 nominees to be rejected by a Senate roll-call vote. The then-Democrat-controlled Senate rejected him because of his stance on civil rights and his role in the Saturday Night Massacre, a series of events part of President Nixon’s Watergate scandal. Reagan’s next nominee, Anthony Kennedy, was accepted unanimously.

Although there are only nine examples of a U.S. Supreme Court vacancy during an election year to draw precedent from, history still seems to contradict McConnell’s claims. Supreme Court Justices Brennan and Kennedy were both accepted despite the Senate majority being held by a political party opposite of the president. The decision to not hold a vote for Merrick Garland was in fact an unprecedented one. “The American people should have a voice in the selection of their next Supreme Court justice… this vacancy should not be filled until we have a new president,” said McConnell in 2016 when defending the Republican stance.

As the confirmation process for President Trump’s nominee, Amy Coney Barrett, begins, the country will watch as the Republican-led Senate decides whether to uphold political precedent.