Op-Ed: In Court Fight, History Backs Obama

By TIMOTHY S. HUEBNER

“THE American people should have a voice in the selection of their next Supreme Court justice,” Senator Mitch McConnell of Kentucky, the Republican majority leader, announced after news of Justice Antonin Scalia’s death. “Therefore, this vacancy should not be filled until we have a new president.” Many of the Republican presidential contenders have heartily endorsed this argument.

Contrary to those claims, however, President Obama has constitutional and historical precedent on his side and should announce a nominee.

Article II of the Constitution directs the president to nominate and, “by and with the Advice and Consent of the Senate,” appoint judges of the Supreme Court. (“He shall,” it says.) Nothing in the Constitution stipulates that this power does not apply in an election year.

In fact, history supports Mr. Obama. On 13 occasions, a vacancy on the nation’s highest court has occurred — through death, retirement or resignation — during a presidential election year. This does not include the most recent and frequently cited example, Justice Anthony Kennedy, who was nominated by Ronald Reagan in November 1987 to fill a vacancy and won confirmation from a Democratic-controlled Senate in February 1988.

In 11 of these instances, the Senate took action on the president’s nomination. In all five cases in which a vacancy occurred during the first quarter of the year the president successfully nominated a replacement.

In the first of these instances, in January 1804, Justice Alfred Moore resigned from the court, and President Thomas Jefferson, who was running for a second term, successfully nominated a successor. In January 1892, the death of Justice Joseph Bradley prompted President Benjamin Harrison to nominate George Shiras Jr. to take his place. Although Mr. Harrison was locked in a race for re-election against Grover Cleveland, the Senate confirmed Mr. Shiras at the end of July. Mr. Harrison lost, but Justice Shiras remained on the court for the next decade.

In January 1916, as President Woodrow Wilson ran for re-election, the death of Justice Joseph Rucker Lamar created one vacancy on the court, and that summer the resignation of Justice Charles Evans Hughes created another. Mr. Wilson filled both seats: the January opening with Louis D. Brandeis, and the July vacancy with John H. Clarke. Mr. Wilson won a second term.

In January 1932, when few expected Herbert Hoover to win a second term, Justice Oliver W. Holmes retired from the court. Rather than wait until after the election, President Hoover nominated and the Senate confirmed Benjamin N. Cardozo, a great justice. Even the Great Depression did not prevent the president and the Senate from fulfilling their constitutional duties.

In March 1888, when Chief Justice Morrison Waite died suddenly and unexpectedly — not unlike Justice Scalia — just as President Grover Cleveland was running for a second term, the president nominated a new chief justice, Melville W. Fuller, to replace him. The Senate confirmed the nomination at the end of July.

Of course, none of these represents an exact parallel to today’s situation. In all but one of these instances, the president and Senate majority were of the same political party, unlike today. Only Mr. Cleveland (a Democrat) faced a Senate controlled by the opposition party, while President Hoover’s Republican Party held only a one-vote majority in the Senate. Still, in both of these instances, the nominees were confirmed by wide margins. In fact, the 1932 confirmation of Justice Cardozo was unanimous.

Three times presidents who were on their way out of office — “lame ducks” in the truest sense — appointed justices to the court. In December 1800, the resignation of Chief Justice Oliver Ellsworth allowed John Adams, who had already lost to Thomas Jefferson, the chance to select the justice’s successor. Mr. Adams chose John Marshall, who went on to serve 34 years as the nation’s fourth and greatest chief justice. In February 1845, a month before he left office, John Tyler nominated Samuel Nelson, who won Senate confirmation and served for the next 27 years.

And when the resignation of Justice William Strong occurred after the 1880 election, the departing president, Rutherford B. Hayes — not his successor, James A. Garfield — nominated Justice Strong’s successor, Justice William B. Woods. In the Adams and Tyler examples, two unpopular departing executives carried out their constitutional duties and overcame political factionalism from inside and outside of their own parties.

To be sure, the Senate has rejected nominees for political reasons, increased the size of the court (for instance, during the Civil War) or reduced it (immediately after the Civil War). But in cases when vacancies have arisen during election years, the weight of history is clearly on the side of the president naming a successor and the Senate acting on that nomination.

The Republicans, who frequently cite the Constitution and look to historical precedent, have an opportunity to be true to their principles. They should ignore Donald Trump’s urging to “delay, delay, delay,” and help ensure our Constitution functions as it should — and as it has in the past.