Erstwhile constitutional law professor President Obama has correctly described the Constitution’s provisions when vacancies arise on the Supreme Court — the president makes a nomination, and the Senate either confirms or rejects it.
Obama’s out to lunch, however, when he claims that there is no history or “unwritten law that says that it can only be done on off-years.” It’s true that nominations have been made and considered in election years, but the fact is that no lame-duck president has filled a vacancy that arose in the election year of his successor.
Of course, we’ve only had “lame-duck” presidencies since the 22nd Amendment was ratified in 1952 limiting presidents to two terms. Before that, presidents have had election-year vacancies filled only if their party controlled the Senate, or by appointing a justice of, or friendly to, the opposition party.
Obama’s own vice president, Joe Biden, was closer to the historical norm when, in 1992, as a senator from Delaware, he advocated a Democratic roadblock to any nomination by then-President George H.W. Bush.
Obama’s faithful mouthpiece, the New York Times, provided a useful graphic of presidential nominations from George Washington to the present, with the utterly misleading headline “Supreme Court Nominees Considered in Election Years Are Usually Confirmed.”
The last time that happened was in 1932, when Republican Herbert Hoover was a de facto lame duck and the Democrats controlled the Senate.
Two years earlier, a coalition of Democrats and progressive Republicans rejected John J. Parker — the only nominee rejected between 1890 and 1968. Hoover then chose Benjamin Cardozo, perhaps the most prominent progressive jurist in America. Since he was replacing the progressive icon Oliver Wendell Holmes Jr., Hoover thought Cardozo should get the seat to “be fair to all elements.” (Justice Willis Van Devanter correctly warned Hoover that the Democrats would not be so fair once they were in the White House.) This would be the equivalent today of Obama nominating Republican Sen. Ted Cruz of Texas to the high court.
In 1916, Democrat Woodrow Wilson was able to fill two vacancies on the court, but he was seeking re-election, and his party controlled the Senate.
Four years earlier, in 1912, Republican President William Howard Taft was able to get Mahlon Pitney through a Democratic Senate. There is some controversy about Pitney’s ideological orientation. Organized labor griped about his opinions in labor disputes, but scholars have depicted him as having a progressive record.
When the nomination ran into trouble, Woodrow Wilson, the Democrat who would defeat Taft in that year’s election, used his influence with Sen. James Martine of New Jersey (where Wilson was governor) to get Pitney confirmed. Wilson and Pitney had been classmates at Princeton University. During the election, Pitney said that he did not “endorse all of the principles” that Wilson was advocating.
Going back to the 19th century does not provide much guidance, because the nomination process was rarely politically controversial. Federal judicial appointments, including to the Supreme Court, were made largely on party and patronage considerations, with due regard to regional and demographic factors. There were “Western” and “Southern” seats. Not too many justices could be from New York or Massachusetts.
By the early 20th century, it was understood that there were Jewish and Catholic seats. (Today, there are only Catholics and Jews on the court, mostly from New York via Ivy League law schools and apprenticeships on the U.S. Circuit Court of Appeals for the District of Columbia.)
Notably, the last time — indeed, the only time — that a Democratic president had to get a Republican Senate to confirm a Supreme Court appointment was under Grover Cleveland in January 1888. And Cleveland appointed justices that were at least as conservative as the Republicans already on the court.
In Cleveland’s first term, he appointed Lucius Quintus Cincinnatus Lamar, the author of Mississippi’s secession ordinance and a Confederate veteran. On the court, Lamar made the important constitutional distinction between manufacturing and commerce, which acted as a major impediment to federal economic regulation for several decades.
Cleveland also successfully appointed Melville Fuller as chief justice later in 1888. The Fuller court is still regarded as the high-water mark of “laissez-faire jurisprudence.” Fuller wrote the opinion for the court that struck down the 1894 income tax as unconstitutional, which was undone by the 16th Amendment in 1913.
In his second term, Cleveland saw the Senate reject his appointment of Wheeler Peckham in 1894, but this was because Peckham had run afoul of the New York Democratic party bosses, not for any reasons of ideology. A year later, Cleveland had worked things out with the Democratic machine, and the Senate confirmed Peckham’s brother, Rufus.
Rufus Peckham was the author of the decision in Lochner v. New York (1905), which struck down a New York law that limited the number of hours that bakers could work — to this day (however unfairly) the poster child for laissez-faire judicial activism.
So, if Obama wants to point to the historical record as justification for pushing through a liberal nominee to replace the late Associate Justice Antonin Scalia during a lame-duck election year, he should study that record first. The only times it’s been done have been characterized by compromise and not by party-line ideology.
Paul D. Moreno holds the William and Berniece Grewcock Chair in Constitutional History at Hillsdale College and is the director of academic programs at the college’s Allan P. Kirby Jr. Center for Constitutional Studies and Citizenship. Thinking of submitting an op-ed to the Washington Examiner? Be sure to read our guidelines on submissions.
