"Obama, GOP gird for battle," screams the headline of the Washington Post that arrived on doorsteps in the snowy U.S. capital this morning. A battle, the story made clear, between Senate Republicans and Democrats over President Obama's nominee to fill the Supreme Court vacancy caused by the death of Antonin Scalia.
But will there actually be such a battle? That's not clear. Obama has made it clear, in his statement after the announcement of Justice Scalia's death and through press spokesman Eric Schultz, that he will send a nominee's name to the Senate and that he will not do so during the current 10-day President's Day recess. But the Senate doesn't have to act on the nomination at all. It only has to act on the advice of Senator Charles Schumer, delivered in July 2007, that the then-Democratic-majority Senate should not approve a Bush Supreme Court nominee with which its majority had strong disagreements. That was 18 months before the end of George W. Bush's second term; we are now 11 months away from the end of Barack Obama's second term.
So when Senate Majority Leader Mitch McConnell said Saturday that the Senate would not confirm an Obama appointee, he was following Schumer's precedent. The Constitution clearly gives the president the duty of appointing a justice and it clearly gives the Senate the prerogative to confirm or deny confirmation to that nominee.
So are we in for an epic confirmation battle, like those Democrats instigated after the nominations of Robert Bork in 1987 and Clarence Thomas in 1991? Not necessarily. Newspapers like the Washington Post will be full of articles about the Obama nominee's great skills and attractive background. For an example of what's coming, consider this article on one possible nominee, who if confirmed and if he lives as long as Scalia would serve until 2052. The writer relishes the prospect of Republicans opposing an outwardly attractive Mexican-American nominee, though to me it brings back the spectacle of the Democrats in the first term blocking the appeals court nomination of Miguel Estrada for fear that he would become an attractive Supreme Court nominee. Estrada's nomination was not reported to the floor when Democrats were in the majority and when Republicans gained the majority it was filibustered — the first filibuster of an appeals court nominee in history. So much for precedent.
Presumably a nomination will be referred to the Senate Judiciary Committee. But the committee doesn't have to hold hearings. It doesn't have to vote on the nominee or it could simply vote no and not send the nomination to the floor. Republicans could argue, as their presidential candidates did in Saturday's debate, that the president should not get to nominate a justice in his last year in office. That's a principled stand, and one for which there is ample precedent.
It's not inconsistent with the Senate's unanimous confirmation of Anthony Kennedy in February 1988; he was nominated in November 1987, after the defeat of Robert Bork's nomination. It's consistent with the Senate's rejection, after a sort of filibuster (the filibuster rules were different then) of the nomination in 1968 of Abe Fortas to succeed Chief Justice Earl Warren, and the concomitant rejection of Judge Homer Thornberry (Lyndon Johnson's successor in the House) to the seat Fortas would have vacated had he been confirmed.
The last three times a justice was nominated and confirmed in a presidential year were in 1956, 1940 and 1932. In 1956 and 1932, Republican presidents named a Democratic nominee who served on their state's highest courts: Dwight Eisenhower chose William Brennan (whose selection he later called one of his biggest mistakes) and Herbert Hoover chose Benjamin Cardozo. In 1940 a Democratic president named a Democratic nominee, Attorney General Frank Murphy, who was nominated on January 4 and confirmed by a Democratic-majority Senate 12 days later. If you want to take this as a precedent for consideration and confirmation of a nominee in an election year, note that it is 76 years old.
If you want a clear precedent for election-year nomination and confirmation, you have to go back 100 years ago, to 1916, when Woodrow Wilson nominated Louis Brandeis in January and John Clarke in July. Brandeis was approved in June after a confirmation fight and Clarke was routinely confirmed in July. By the way, Brandeis' nomination prompted the first Judiciary Committee hearing on a nominee in history. Hearings are not mandatory and Obama's nominee need not get one.
UPDATE: Adam J. White, on the basis of impressive historical research, makes the point in the Weekly Standard blog that the Senate has no constitutional duty to vote on Supreme Court appointments. In fact, the Senate has confirmed only 124 of 160 presidential Supreme Court nominations, and of the 36 unsuccessful nominees fully 25 received no up-or-down vote. The Senate would be well advised, in my view, to treat an Obama nominee the same way.