US Supreme Court Nominee Precedence

Hi Exponent staff and readers,

With the death of honorable U.S. Supreme Court Justice Ruth Bader Ginsburg, the search to fill the seat has become a pressing issue for Republicans and Democrats alike. No word has found more of a resurgence into political vernacular than precedence. The word itself is a powerful force for maintaining the standards of our established government, but we must be careful how we apply the notions.

The News article “Establishing Precedence” and the opinion piece “Political Convenience Must End” in the Thursday, Oct. 1 issue of the Exponent are well researched microcosms of the issues at large. The articles established that judges can be appointed with different parties in control of the Senate and Presidential seat and that political discourse, decency and procedures need to be followed. Although these articles address the issues, they fail to complete the whole reality of the situation.

Many articles posted about the attempts to appoint a new judge revolve around 2016 quotes from Senate Majority Leader Mitch McConnell R-KY. McConnell said, “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.” It is easy to apply this to the present, but some context is required before the precedence can be applied. At that moment, Republicans controlled a majority of the Senate, allowing them to rightfully block appointees to the Court.

Even presidential candidate Joe Biden agreed with this notion back in June 1992, when his party successfully blocked a President George Bush Sr. appointee. At the time, Bill Clinton looked to have a strong chance of being elected over Bush Sr. Although Clinton had high hopes, the prospect that Republicans would retake the Senate were high. With the likelihood of both scenarios, Biden’s response was, “In a divided Government, he [Clinton, assuming he gets elected] must seek the advice of the Republican Senate and compromise. Otherwise, this Republican Senate would be totally entitled to say we reject the nominees of a Democratic President who is attempting to remake the court in a way with which we disagree.” Even though Biden also noted that the process by which we do these nominations needs improvement, he has used these same established processes to his advantage. Senator McConnell may have been playing politics with his quote, but the process by which US Supreme Court Justices are appointed still provides power to McConnell and the rest of the Republicans. A power that is spread between two balanced branches of government, voted in by the people of the United States.

In today’s scenario, the Senate and Presidential seat are both controlled by Republicans, and historical precedence is on their side. There have been 29 times that there has been an open Supreme Court seat in an election year, and all 29 times the president has nominated someone, even if they do not have the votes from the Senate. The last time an election year had the Senate and Oval Office in party alignment was 1968. That year, a bipartisan filibuster stopped the approval of Abe Fortas as chief justice. Overall, there have been 19 instances where the nomination occurred with the same party in control of the Senate and the Presidential office. Of those nominations, 10 occured before the election, and Fortas was the only justice to not be approved. Precedence shows that with a Legislative and Executive branch in party alignment and a judge appointed, if hearings and voting occur before the election, a new Judge is highly likely to be established based on U.S. history.