Mitch McConnell is now leading more than the United States Senate; he’s leading the GOP opposition to President Obama appointing any successor to Justice Antonin Scalia’s seat on the Supreme Court. While he certainly seems to have a lot of support within his own party for this crass display of partisanship, what he lacks is the support of history or precedent going all the way back to the founding of our constitutional system. While many Republicans have already been trying to portray Obama’s resolve to fulfill his constitutional duty as unprecedented in the last 80 years (which it isn’t, if you’re being realistic) they are ignoring the practices of presidents going all the way back to George Washington himself.
A scan of the list of Supreme Court Justices shows that presidents have made appointments in the last year of their presidency many times in the past, with eleven of those being made by clearly lame-duck presidents who were not standing for re-election or had lost their re-election bids. Here’s a table of those eleven with their nominating presidents and years of confirmation by the Senate:
Justice |
Year |
President |
last presidential year supreme court appointments
Samuel Chase |
1796 |
Washington |
Oliver Ellsworth1
|
1796 |
Washington |
John Marshall1
|
18012
|
J. Adams |
Roger B. Taney1
|
1836 |
Jackson |
Philip Barbour |
1836 |
Jackson |
John Catron |
18372
|
Jackson |
Samuel Nelson |
18452
|
Tyler |
William B. Woods |
18812
|
Hayes |
Howell E. Jackson |
18932
|
B. Harrison |
Rufus W. Peckham |
1896 |
Cleveland |
Anthony Kennedy |
1988 |
Reagan |
1 Chief Justices 2 Confirmed after presidential election.
As this list shows, the precedent of appointing Justices by lame-duck and even losing presidents goes back right to the founding of our republic. Not only did Washington see nothing wrong with appointing two Justices (including a Chief Justice) in the last year of his presidency, even as he had made it plain that he would not seek re-election, his successors followed in his footsteps whenever opportunity (whether presented by death, resignation, or expansion of the Court) presented itself. It is of particular note that Adams established the president’s unequivocal right to appoint to fill vacancies even after losing an election. Though there was widespread outcry from Democratic Republicans at the time, John Marshall’s appointment was never undone and set the precedent that all his successors followed. Four subsequent presidents (Jackson, Tyler, Hayes, and Harrison) all made appointments that were confirmed after elections where they did not seek re-election or where they lost the election. Six more presidents made appointments in their last year when they were not (or could not, in the case of Ronald Reagan) run for another term. Note especially that a current Justice, Anthony Kennedy, is himself such an appointment.
It is also worth noting that McConnell’s assertion that President Obama should not make an appointment because of some heretofore unheard of and unasserted right of the following president to make the appointment instead is also without precedent. No past president, of any party, has hesitated for a moment to appoint a Supreme Court Justice during their final year in office when the opportunity was given to them by whatever event vacated a seat (or created a new one, as in Jackson’s 1837 appointment of Catron.) The Constitution is quite clear that a sitting president has the right and duty to make the appointment, based on the explicit text of Article II, section 2. It is also equally clear on the Senate’s responsibility is to advise and consent within a reasonable time and (given every historical precedent) within that president’s remaining term in office. That McConnell is so flagrantly flouting the clear meaning of the Constitution while trying to keep a sitting president from filling the seat of a Justice known (however rightly or wrongly) as a strict constructionist is the height of irony.
Mitch McConnell is making a desperate play to try and keep the power of the Court in the hands of conservatives and to try and rally the party base for what looks to be a difficult election for the GOP. But in doing so, he and his fellow travelers in the Grand Old Party have thrown their supposed respect for the letter of the Constitution and the actions of the Founders under the (campaign) bus.