Supreme Court debate ignores history

 

History seems to go back no further than the memory of the person reciting it.

Bad recall dominates the debate whether President Trump should have left the choice of the next Supreme Court justice to the next presidential term – his or Biden's.

Democrats say that Senate Majority Leader Mitch McConnell broke tradition by blocking the Senate from considering President Obama's nomination of Merrick Garland because it was an election year so the choice should have been left to the next president. He didn't.

Republicans say that the Senate controlled by the party opposing the president's has traditionally disapproved his election year nominations. They're wrong.

A close look at history reveals that there is no set pattern to guide the current situation.

A definition: An election year includes the 11 months before a November election and the time between the election and the presidential inauguration early the following year, originally in March but now in January.

A president can nominate a justice at any time in their four-year term. Andrew Jackson nominated two justices on the day before he left office. He was sure his successor would push through his nominees.

According to U.S. Senate data, there have been 39 nominees to the Court in an election year. Of them 21 were confirmed by the Senate, 16 were rejected and three were withdrawn for other reasons.

Among the 16, only two were made by presidents selected by the voters on Election Day. John Tyler became the "accidental president" when the chief executive died one month into his term. Tyler had no support from either party. He made nine election year nominations and eight, half of the total rejected, were killed.

Similarly, Milliard Fillmore, who succeeded a deceased president, named three and failed on all, as did two other similar presidents. Only two full-term presidents, James Buchanan, until now rated as the worst president, and Obama saw their election year nominees fail.

Some Republicans say it was normal for Obama to fail, because the Senate was controlled by the GOP in an election year. Still, in 1888, a GOP Senate confirmed Democratic President Grover Cleveland's pick of Bowdoin graduate Melville Fuller as chief justice, and then Cleveland lost the election.

Democrats complain that Garland did not get a Senate hearing, even if he were going to be rejected. That had happened six times previously for Tyler-type presidents. Perhaps the GOP, like Trump, thought Obama was a usurper who deserved no better treatment.

The Supreme Court has become heavily partisan since 1994 and the GOP's conservative manifesto, "Contract with America." Ruth Bader Ginsburg was the last nominee overwhelmingly approved. Since then, confirmation has been fought along party lines.

Still, it is unwise to assume the long-term effect of a judicial appointment. Justices, laws and popular values change over time and, insulated from short-term political pressure, justices may develop opinions different from when they were appointed.

A Kennedy appointee turned out far more conservative than foreseen. One of G.H.W. Bush's picks was surprisingly liberal.

One Wall Street Journal early report about Trump nominee Amy Coney Barrett said: "Here's what her confirmation would mean for the future of American law." Not so. Nobody knows for sure what American law will be in coming decades.

Some Democrats are lashing out against the prospect of a Court with a conservative majority made possible by McConnell's tactics. 

One proposal would impose term limits on federal judges. That's prevented by the Constitution. 

If the Democrats win both the presidency and the Senate, they might enlarge the Court to tip the balance. There's a precedent for changing the size of the Court for partisan purposes. 

When Republicans blocked Andrew Johnson, Lincoln's successor, from making any Court appointments in the 1860s, they cut the Court to seven justices. Without vacancies left for him to fill, nothing happened, and the Court returned to nine.

Without permanently adding justices, Democrats could authorize temporary slots, as previously described in this column. That could restore some balance, while not changing the number of justices. It's long been done for other federal courts.

Congress can also define the Court's jurisdiction, taking certain matters away from its control. And it can legislate better, especially on health care, leaving less room for Court interpretation.

If the GOP succeeds, a majority of American voters may be disappointed, having preferred the Court pick to be left to the next president. But voters usually pay little attention to Court appointments in presidential and Senate elections.

To counter or reverse Trump-McConnell judicial moves and also to reduce the chances of post-election challenges, the Court issue could help bring out a bigger Democratic vote and a strong Biden-Senate victory.