So what exactly does the Constitution say about the nomination process for a new Supreme Court Justice? First a little history. The Constitution established the Supreme Court in 1789, leaving justice confirmation procedure to Congress. The purpose was to create the JUDICIARY branch of government to assure that Congress made no laws that were contrary to the Constitution. Judges are appointed for LIFE to uphold their independence. The way in which Judges were chosen was adopted from the 100 year old model that Massachusetts had used which gives the Senate the right to confirm Presidential appointments. This right of advice and consent is enshrined in Article II, Section II of the Constitution, which further granted the president authority to unilaterally and temporarily fill court vacancies during Senate recesses. There are no constitutional requirements for age, experience, or citizenship of Supreme Court justices, nor did the Constitution establish how many justices would make up the court. Instead, it left many of the details of how the Supreme Court would function up to Congress and the president. The Judiciary Act of 1789 established a court of six justices—a number that would fluctuate with various acts of Congress over the next 80 years from as few as five to as many as 10 during the Civil War. Currently there are 9 Supreme Court Justices.
With the passing of Ruth Bader Ginsburg, the Constitution REQUIRES the President to submit nominations to the Senate for its advice and consent. The process to fill the seat officially begins when the president sends a message to the Senate putting forth his candidate. In the country’s earliest days, the Senate would quickly vote on the nomination, often in a matter of DAYS! But the appointment process has since grown longer and more complex.
In 1868, the Senate ruled that all nominations must first go through the Committee On the Judiciary unless an exception is granted, before being submitted to the entire Senate for a vote. The Committee originally met in private and it wasn’t until the late 1930s that these became the public grilling of today. Once the judiciary reports on a nomination, the Senate majority leader schedules it for consideration among the full body. If someone wants to BLOCK the nomination, they can FILIBUSTER ( a VERY long speech that can go on for hours). Supporters can end a filibuster by invoking CLOTURE, a motion that forces a vote on a pending matter within 30 hours.
So what usually happens in a Presidential election year? There are NO instances since at least 1900 of the president failing to nominate and/or the Senate failing to confirm a nominee in a presidential election year because of the impending election! In that period, there were several nominations and confirmations of Justices during presidential election years. This includes nominations that were made by Presidents Taft, Wilson, Hoover, F. Roosevelt and Reagan. All in all there have been 26 nominations to the SCOTUS during an election year. Surely in the coming week you’ll hear about the “Thurmond Rule” which is named after Senator Strom Thurmond. In the late ’60s, Thurmond blocked then-president Lyndon B. Johnson’s appointment of Justice Abe Fortas as chief justice, citing the closeness of the upcoming election. The “Thurmond rule” puts forth the idea that a federal justice, such as a Supreme Court justice, should not be decided in the run-up to an election. The “Thurmond rule” isn’t really a rule. It has no legal standing, although members of both parties have used it over the past half-century to try to justify their decisions to push through—or not—a new Supreme Court Justice. Most recently, it was invoked in 2016; Republicans cited the Thurmond rule as a reason to not vote on any nominee of Obama’s.
So there you have it. Like everything else in 2020 including Covid-19, the nomination of a replacement for Ruth Bader Ginsburg has been politicized. The Constitution is clear on the topic. There’s no way of predicting which President from which party will have the responsibility to nominate a Supreme Court Justice. History shows us that BOTH parties have had the opportunity. The Constitution has worked for over 200 years and BOTH parties need to remember that. I believe we should follow the direction of Article II, Section II of the Constitution. I welcome your thoughts.
