Why "tradition" supports hearings on Obama's Supreme Court nominee

Photo by Abby Livingston

President Obama finally announced that Merrick Garland is his nominee to fill the Supreme Court vacancy left by Justice Antonin Scalia’s unexpected death.

Garland received substantial Republican support for his confirmation to chief judge of the D.C. Circuit Court of Appeals in 1997 — the vote was 76 to 23. Orrin Hatch, who was at the time the chairman of the Senate Judiciary Committee, enthusiastically endorsed Garland’s nomination. According to the 1997 congressional record, Hatch said, “Mr. Garland's experience, legal skills, and handling of the Oklahoma City bombing case have earned him the support of officials who served in the Justice Department during the Reagan and Bush administrations ... all Republicans, I might add, who are strong supporters of Mr. Garland, as I believe they should be, as I believe we all should be.” Hatch’s respect for Garland continued into this century, as just recently he praised the judge as a moderate and “a fine man.”

After President Obama chose this “fine man” to fill Justice Scalia’s seat, however, Hatch reaffirmed his position that there should be no hearings during this session.

Hatch isn’t alone. Republicans—including Texas Sens. Ted Cruz and John Cornyn—have made it clear that they will neither meet with nor hold hearings on Obama’s nominee, regardless of qualifications. As justification, they frequently invoke "tradition." "It has been 80 years since a Supreme Court vacancy was nominated and confirmed in an election year," Cruz recently said. "There is a long tradition that you don't do this in an election year."

Cornyn is of like mind: "I don't see the point of going through the motions if we know what the outcome is going to be."

When they speak of tradition, Republicans often invoke the so-called Thurmond Rule, which, in their view, posits that an outgoing president's nominee should not be considered. As Cornyn put it, "The American people need to decide who is going to make this appointment rather than a lame-duck president." He's referring, of course, to the next president — and he isn't talking about Hillary Clinton.

But does the Thurmond Rule really justify Republicans' refusal to entertain an Obama nominee? The rule's own provenance suggests not.

The Thurmond Rule — unwritten and nonbinding — was born during successful efforts by Senate Republicans (most famous of them Strom Thurmond) to oppose President Lyndon Johnson's 1968 nomination of Abe Fortas to replace liberal Chief Justice Earl Warren. Warren's retirement announcement in the summer of 1968 was, by all accounts, deliberately timed to allow Johnson to appoint another liberal-minded chief justice before Richard Nixon was sworn into office. This attempt to manufacture a vacancy prompted the following remark by Republican Sen. Robert Griffin during confirmation hearings:

[I]n almost every previous instance, the "lame duck" nominations to the Supreme Court were submitted to fill a vacancy left by the death of a sitting Justice. Only three out of the 16 "lame duck" nominations were made to fill vacancies which resulted from resignations. And never before has there been such obvious political maneuvering to create a vacancy so that an outgoing president can fill it and thereby deny the opportunity to a new president about to be elected by the people ... It should surprise no one that such a political maneuver has been met head-on by a political response from within the Senate.

Thurmond, Griffin and their fellow Republicans clearly were inflamed by what they perceived to be a deliberate and hostile move by Warren and Johnson to ensure another liberal justice was elevated to the Court before Republicans took the White House. This move was by design—not the natural course of things. Indeed, as Griffin himself acknowledged, previous "lame duck" nominations had followed a justice's death, a circumstance with which Griffin apparently had no quarrel.

This history poses a problem for Republicans. The rule may make sense in terms of political comity to the extent that it discourages justices and outgoing presidents from artificially designing vacancies in order to ensure a like-minded replacement for a departing justice. But Justice Scalia did not strategically retire — he died.

In this sense, Republicans' mantra-like references to "tradition" are misplaced. They seek to accomplish now the very thing the Thurmond Rule was intended to avoid: artificially manipulating the confirmation process in the hope ensuring an equally conservative replacement for Scalia. But instead of accomplishing it by design (strategic retirement before the election), they are trying to accomplish it by delay (pushing the nominating process until after the election).

Now that President Obama nominated a moderate, this strategy has become patently obvious. All of a sudden, some Republicans — Hatch included — are “open” to confirming Judge Garland during the lame-duck session after the election, if a Democrat wins the presidency. As Arizona Sen. Jeff Flake put it, “If we [Republicans] come to a point where we’ve lost the election, and we can get a centrist like Garland in there, as opposed to someone like Hillary Clinton might appoint, then I’d go for it.”

Republican dismay over the timing of Scalia's unexpected death is understandable. Republicans worry that, in words of Wisconsin Sen. Ron Johnson, “President Obama’s nominee would flip the court from a 5-to-4 conservative to a 5-to-4 liberal-controlled court.” Even Chief Justice John Roberts agrees that the motive behind Supreme Court confirmation hearings is political. In remarks made 10 days before Scalia’s death, Roberts concluded, based on evidence from recent Supreme Court hearings, that “the [nominating] process is being used for something other than ensuring the qualifications of the nominees” and that “the process is not functioning very well.”

But whatever justifications Republicans might have to deny confirmation for an Obama nominee, refusing to consider any nominee based on the Thurmond Rule isn't one of them. If anything, the rule was designed to discourage precisely the kind of judicial engineering that Senate Republicans are pursuing now, which violates its very spirit.

Anya Bidwell

Attorney, Institute for Justice

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