May 2016: Supreme Court Vacancies In Presidential Election Years

Washington Watch | May 2016
By Bruce Moyer

The Supreme Court vacancy created by the death of legendary Justice Antonin Scalia has invited historical comparison to the Senate’s treatment of vacancies during presidential election years. It’s instructive to take a look at the two most recent times this has occurred—in 1968 and most recently in 1988.

The Kennedy Confirmation in 1988
The last time a Supreme Court nominee was confirmed in the midst of a presidential election was in 1988. On Feb. 3 of that year, Anthony M. Kennedy was confirmed by the Senate, just as the presidential primary season was kicking into gear. A Democratic-led Senate provided approval by a 97-0 vote for Kennedy, who was nominated by lame duck Republican President Ronald Reagan two months earlier. The vote is remarkable today for its speed and unanimity, but a string of events that preceded it furnish even more clarity.

Kennedy was not Reagan’s first pick for the vacancy. His first nominee, Robert H. Bork, was rejected by the Senate after a contentious 108-day battle that, in retrospect, helped to usher in the present era of partisan payback in judicial politics. The Democrat-led rejection of Bork’s nomination and his ideology in the fall of 1987 represented a sharp turn from the traditional deference that Supreme Court nominees had received from the Senate. In the wake of that bitter fight, Reagan’s next choice, D.C. Circuit appeals judge Douglas Ginsburg, was also sidelined when Ginsburg’s admission of past marijuana use met with public disapproval. That led to Reagan’s third nomination, this time of Kennedy, a relatively unknown Ninth Circuit appeals court judge with a non-provocative paper trail, who was greeted with approval by a shell-shocked, weary Senate, even in a Presidential election year.

The Fortas Nomination in 1968
In 1968, two decades earlier, another high-stakes Supreme Court nomination battle played out differently, this time between a Democratic president and a Democratic-led Senate. It June of that year, President Lyndon B. Johnson named Associate Justice Abe Fortas, a long-time Johnson loyalist, to replace retiring Justice Earl Warren as Chief Justice. At that time, Johnson was a lame duck president, having announced two months earlier that he would not run for reelection. Johnson, in addition to elevating Fortas, also nominated Fifth Circuit appeals Judge Homer Thornberry to replace Fortas as Associate Justice.

But Fortas’ nomination as Chief Justice met stiff resistance in the Senate that summer, in large part because of southern conservative discontent, in both parties, with the “excesses” of the Warren Court and Fortas’ association with the Court’s liberal-leaning jurisprudence. Despite those misgivings, the Senate carried on in considering the Fortas and Thornberry nominations, devoting nine days of hearings in July before reporting out the nominations. The Senate recessed for its traditional August break and upon return in September, with the presidential election campaign in full swing, a filibuster began with the support of senators in both parties. It kept the Fortas nomination off the floor for a month, motivated by the Warren Court’s liberalism, Fortas’ ethics problems, and more broadly, the appropriateness of giving the President an edge by filling a seat so close to an election. Finally, on Oct. 1, a cloture vote to break the filibuster failed, 45-43, far short of the 66 votes then required under the Senate’s rules. The next day, just 35 days shy of the election, President Johnson withdrew Fortas’ and Thornberry’s nominations. Warren continued as Chief Justice and Abe Fortas as associate justice, for a time. A year later, Fortas resigned from the Court in response to a pileup of ethics concerns that began to surface during his Senate hearings.

Challenging presidential deference and the old conventions of Supreme Court nomination politics was bold in 1968. It represented an assertive way to keep the Chief Justice, and associate justice seats open in the event Richard M. Nixon won the presidency. That bet paid off, and Nixon went on to secure the confirmation of four Supreme Court nominees, including one as Chief Justice during his nearly six years in office. Similar nomination opportunities could await the next President, given the ages of at least three of the justices today.
Bruce Moyer is government relations counsel for the FBA. © 2016 Bruce Moyer. All rights reserved.

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