WASHINGTON, D.C. (07-18-16) – “President Obama was right the first time, but wrong today in an op-ed at the Wall Street Journal, in which he incorrectly argues that democracy requires a vote on his pick for the Supreme Court, Judge Merrick Garland,” said Americans United for Life Action Acting President and Senior Counsel Clarke Forsythe. “To thrive, democracy requires the rule of law, established in the Constitution, which requires Senate involvement. In his op-ed today, Obama misstates the law and fudges on the facts, as this IS democracy in action. Choosing the right justices demands intense scrutiny and allows for a vote of no confidence — or no vote at all — when the judicial nominees are poor. In this case, the point of the Senate’s ‘no vote’ is clear: no more Obama Supreme Court nominations. That’s a policy that the electorate can vote for and support. In fact, President Obama held the view that a president’s Supreme Court pick can be rejected when he filibustered the nomination of Supreme Court Justice Samuel Alito in 2006. Today’s senators are acting as the Constitution demands when they chose to pass on the President’s choice. And AULA calls on them to stand firm. There should be no more Supreme Court picks from President Obama this late in his administration.”
As Forsythe observed in an op-ed at The Hill when Garland was nominated, “the fact is among the ‘checks and balances’ that the Constitution established is a dual role for the president and the Senate in ‘appointing’ justices to the Supreme Court. Article II, Section 2 of the Constitution gives the president the power to ‘nominate’ and gives the Senate the power of “Advice and Consent.” As Ruth Bader Ginsburg observed in 1988, this is an arrangement of ‘shared power.’ The Senate’s power is a ‘check’ upon the president, as Alexander Hamilton pointed out in Federalist #76.”
But the President glossed over the shared power laid out in the nomination system as well as inaccurately asserting that such a delay is unprecedented in today’s opinion piece. President Obama writes, “Every Supreme Court nominee since 1875 who hasn’t withdrawn from the process has received a hearing or a vote. Even when the nominee was controversial. Even when the Senate and the White House were held by different parties.”
But again, in The Hill piece, Forythe observes:
There are numerous instances where the Senate has rejected presidential nominees to the Supreme Court. Approximately 31 of 160 Supreme Court nominees have been rejected. (Henry Hogue did a detailed analysis for the Congressional Research Service in 2010.) A list of some relatively recent ones (listing president-nominee) include: Hoover-Parker (1930), Johnson-Fortas (1968), Nixon-Haynsworth (1969), Nixon-Carswell (1970), and Reagan-Bork (1987).
Some illustrative examples:
George Washington’s nomination of John Rutledge in 1795 to be chief justice was defeated within days of formal filing, without hearings, because of political opposition to Rutledge.
James Madison’s nomination of Alexander Wolcott in February 1810 was rejected within days, without a hearing, because of political opposition to Wolcott.
At Andrew Jackson’s first nomination of Roger Taney to the Supreme Court, the Senate passed a resolution in March 1835 “to postpone the nomination indefinitely.” After an election and the makeup of the Senate changed, Taney was re-nominated and confirmed.
When John Tyler nominated Reuben Walworth in March 1844, a resolution to table the nomination was passed in June 1844.
When President Grant nominated Caleb Cushing for chief justice in 1874, Senate opposition was so great to Cushing’s anti-war record and history of opposition to the abolition of slavery that no vote was taken, and Grant withdrew the nomination within days.
When Rutherford B. Hayes nominated Stanley Matthews in the last months of his term in 1881, the Senate did not act on the nomination during Hayes’ term. After President Garfield was elected, Garfield resubmitted the nomination and Matthews was confirmed.
How the Senate considers a nominee is also a prerogative of the Senate. As these examples show, the Senate has withheld consent in a number of ways: passing a resolution rejecting a nominee, or “tabling” a nomination, or rejecting a nominee with a recorded vote.
Hearings themselves are a 20th century development. The first were held in 1916, when President Wilson nominated Louis Brandeis.
“Given the oversized role that the Supreme Court plays in our nation’s life, in particular on the life issue in which the court wiped out the laws of the 50 states in Roe v. Wade making themselves the National Abortion Control board for the country, it is appropriate for the Senate to decide whether a Supreme Court nominee is right for the job,” said Forsythe.
A leading expert on abortion law, Forsythe is widely published and author of Abuse of Discretion: The Inside Story of Roe v. Wade (Encounter Books 2013). Learn more at www.aulaction.org