The Facts on the Senate Protecting the Integrity of the Supreme Court
Many questions have arisen about the Senate's constitutional authority in the confirmation process, especially during a presidential election year.
As the longest-serving member and a former Chairman of the Senate Judiciary Committee, Senator Orrin Hatch has played a major role the confirmation of every Justice currently serving on the Supreme Court. His longstanding priority has always been to protect the integrity of the Supreme Court.
Likewise, Senate Republicans are committed to protecting the Court against the political upheaval that inevitably occurs during presidential elections. Here are some facts to consider as you report on this issue. Please feel free to use me as a resource as you seek out more information as well.
Senate precedent is clear: Lame-duck presidents should not fill Supreme Court vacancies created during a presidential election.
Fact: The Senate has never allowed a term-limited President to fill a Supreme Court vacancy this late in his term. This is only the third vacancy in nearly a century to occur after the American people had already started voting for the next President. In the previous two instances, in 1956 and 1968, the Senate did not confirm a nominee until the year after the presidential election. In fact, the only time the Senate has ever confirmed a nominee to fill a Supreme Court vacancy created after voting began in a presidential election year was in 1916, and that vacancy arose in unique circumstances when Justice Charles Evans Hughes resigned his seat on the Court to run against incumbent President Woodrow Wilson.
• It has been nearly a century since a Supreme Court justice has been nominated and confirmed in an election year.
• The Senate has never allowed a term-limited President to fill a Supreme Court vacancy this late in his term.
• For example, Justice Anthony Kennedy—the most common example cited of a presidential election year confirmation (1988)— was nominated in November of 1987 to fill a vacancy that arose in June of that year. His nomination was only considered after Senate Democrats voted down President Reagan’s initial nominee, Robert Bork, and forced President Reagan’s second nominee, Douglas Ginsburg, to withdraw.
The Senate is doing its job under the Constitution by acting to defend the integrity of the Supreme Court
Fact: The Constitution gives the Senate authority to check the President’s power in the appointment process. While the Constitution gives the President formal authority to nominate a Supreme Court candidate, the Senate has the right to refuse its consent to any nominee.
• In Article II, Section 2 of the Constitution there are two relevant paragraphs: the first gives the President authority to nominate judges, and the second paragraph gives the Senate the responsibility to advise and give or withhold consent—a crucial check against the President’s appointment power.
• That advice and consent role is not a ceremonial function, but a deliberate and essential component of the Constitution’s system of checks and balances.
• The Constitution does not specify a timeframe for this process; instead, it leaves to the Senate’s discretion to choose when and how it will carry out the advice and consent function.
• Elections have consequences. In 2014, the American people elected a Republican Senate majority as a check against President Obama’s executive overreach.
In short: The President has no standing to tell the Senate how to do its job.
The absence of one of the nine justices on the Court is far from calamitous, but a hastily made lifetime appointment could be.
Fact: Nothing in the Constitution specifies the number of justices that should serve on the Supreme Court. Rather, the Constitution places the power to determine the number of justices in the hands of Congress. This number has changed throughout history. For example, at the beginning of our Republic, only six Justices served on the Supreme Court. Over the years, Congress has passed various acts to change this number, fluctuating from a low of five to a high of ten. The Judiciary Act of 1869 fixed the current number of justices at nine.
The Supreme Court has operated without a full contingent of Justices at various times throughout history. In these situations, the Court has well-established rules for dealing with its cases, including 4-4 splits.
• For example, in 1969, the seat vacated by Justice Abe Fortas stayed open for more than a year after Senate Democrats blocked multiple candidates nominated by President Richard Nixon.
• More often, justices recuse themselves from cases in which they might have a conflict of interest. In such situations, the Supreme Court continues to operate with a reduced number of Justices. A recusal never inhibits the Supreme Court from functioning, even in high-profile cases. For example, Justice Elena Kagan recused herself as recently as 2013 in Fisher v. University of Texas, but the Supreme Court still easily reached a decision with only eight justices.
• Having an even number of justices doesn’t significantly affect the Supreme Court’s work because the vast majority of the Court’s decisions are nearly unanimous or split along non-ideological lines. Should a tie occur, the ruling of the lower court is simply upheld.
• Although unlikely, should any controversy arise, the Court has the authority to hold cases over or reargue them once a new justice is confirmed.
Democrats—not Republicans—set the precedent of refusing to confirm Supreme Court candidates in a presidential election year.
Fact: Senate Democrats who accuse Republicans of obstructionism willingly overlook their own Party’s role in establishing the precedent of not confirming judges in a presidential election year.
• In 1992, then-Senator Joe Biden—the Chairman of the Senate Judiciary Committee—warned President Bush against nominating a candidate for the Supreme Court in an election year. In Biden’s own words, “once the political season is under way … action on a Supreme Court nomination must be put off until after the election campaign is over. That is what is fair to the nominee and is central to the process.”
• In the same Senate floor speech, Biden asserted that “The Senate should consider not scheduling confirmation hearings on the nominee until after the political campaign season is over.”
• Senator Leahy, the top Democrat on the Judiciary Committee, argued during President Bush’s last year in office that “judicial vacancies in the last year of a President’s term remain vacant.”
• Senator Schumer argued in July 2007—with a year and a half left in President Bush’s term—that the Senate “should not confirm any Bush nominee to the Supreme Court except in extraordinary circumstances.”
• In 2006, Senators Harry Reid, Chuck Schumer, Dick Durbin, Patrick Leahy, Joe Biden, Hillary Clinton, and Barack Obama all voted to block an up-or-down vote on Justice Alito’s nomination, notwithstanding his clear qualifications.
• With this action, President Obama became the first president in history to have voted to deny an up-or-down vote on a Supreme Court nominee. Only 3,760 days later—after Justice Scalia’s death—did President Obama announce that he regrets his decision to filibuster Alito’s nomination.
Senate Democrats have been responsible for every major escalation in the so-called “Confirmation Wars”—from the character assassinations of Robert Bork and Clarence Thomas to the unprecedented obstruction of President George W. Bush’s nominees and the use of the “nuclear option” to dismantle the judicial filibuster for lower court nominees in 2013. They have no credibility in criticizing Republicans for following precedents set by Democratic leaders.
The Republican Senate is standing firm on its position.
Fact: Democrats believe Republicans will acquiesce to the President’s demands to confirm his nominee. But the Republican Conference is united in the view that the
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