Nomination of a Supreme Court Justice During an Election Year

Nomination of a Supreme Court Justice During an Election Year

Brent Bohm, Fall 2020

The nomination of a Supreme Court Justice is one of the major responsibilities that belong to the President of the United States. Throughout the history of the United States, only three presidents ‒ William Henry Harrison, Zachary Taylor, and Jimmy Carter ‒ have not nominated a Justice to the Supreme Court.[1] A Justice serves on the Supreme Court for life, making the nomination and confirmation of a nominee an influence that far exceeds an individual’s presidency. The confirmation of a Justice directly impacts the future of the nation and the fate of the laws and court cases that will come across their desk. In this situation, it begs the question whether or not a president should be allowed to nominate a Justice during an election year. The last two elections have brought this question to light. In March of 2016, President Barack Obama nominated Judge Merrick Garland, eight months before that year’s election. Due to 2016 being an election year, critics of the nomination, such as Senator Mitch McConnell, claimed that Judge Garland should not be confirmed as the American people should have a say in the nomination and confirmation of a new Justice via the election of the next president. Senator McConnell said “The American people are perfectly capable of having their say on this issue, so let’s give them a voice. Let’s let the American people decide. The Senate will appropriately revisit the matter when it considers the qualifications of the nominee the next president nominates, whoever that might be.”[2] However, when a similar situation occurred just over a month before the 2020 election, President Trump nominated Judge Amy Coney Barrett to the Supreme Court on September 29th of 2020. Despite Senator McConnell’s apparent position in 2016, McConnell stated that he would “proudly vote to confirm Judge Barrett.”[3] This discrepancy in the way these two cases were treated shows that this scenario requires far more legislation and guidelines. In this essay, I question whether or not this decision to follow through with Judge Barrett’s nomination even after allowing Judge Garland’s nomination to lapse was corrupt and hypocritical, explore the idea of introducing legislation and guidelines that govern election year Supreme Court nominations, and lastly, whether or not this should even be an issue. As former President Barack Obama stated, “[A Supreme Court nomination] is supposed to be above politics, it has to be, and should stay that way.[2]” This sentiment implies that the American people’s vote should not matter in terms of who gets to nominate a justice as the nominee should, in theory, be neutral and above the party system.

The question of whether or not the confirmation of Justice Amy Coney Barrett’s nomination was hypocritical is hardly even a question. If Senator McConnell truly believed that the American people deserved to have a voice over who was nominated and confirmed, he would have held the same sentiment when dealing with Justice Barrett that he had with Judge Merrick Garland and should have prevented the senate from voting on the confirmation. Justice Barrett herself claimed that due to Judge Garland, a liberal, replacing Justice Scalia, a conservative, it would throw off the balance in the court and it makes sense that the senate would hold off on the confirmation vote.[4] With this, a similar case to the hypocrisy of McConnell’s quote occurs. If Justice Barrett truly believed this then shouldn’t she herself been opposed to the nomination and confirmation vote taking place as she was replacing Justice Ruth Bader Ginsburg? Further quotes by McConnell and Tennessee senator Lamar Alexander certainly point to the decision to confirm Barrett to be biased and corrupt. McConnell stated that the situation was different from the Garland case as the president and the Senate were from the same party.[5] Senator Alexander stated, “Senator McConnell is only doing what Democrat leaders have said they would do if the shoe were on the other foot.[6]” This blatant flip in opinion could appear to be frightening to some. It seems that this choice to confirm Justice Barrett was corrupt. The decision was made purely to prevent the Democratic party from gaining any sort of power even if they won the presidency during the election. Barrett’s confirmation assured a 6-3 advantage for the conservatives over the liberals within the court; making it incredibly difficult for a democratic senate and president to pass any legislation without being challenged for as long as there are no vacancies on the court.

Due to the past two election periods occurring during a vacancy within the Supreme Court, legislation should be introduced to set a standard on how to handle such an event. There are several ways this could be introduced. Firstly, nominations could be prevented until the president elect of that year is sworn into the presidency. Secondly, any nomination of a Justice must be voted on before election day, effectively disallowing the nomination from lapsing due to the election of a new congress. Thirdly, allow a special, nationwide vote on whether or not the citizens of America believe that a nominee should be voted on that year. Lastly, an amendment to the Constitution could be made which introduces a role of the House of Representatives in also confirming a nominee during an election year. Each of these options have different effects and pros and cons. In the first case, while it would prevent a scenario similar to the hypocrisy of the Senate during 2016 and 2020, would neuter the power of the Executive branch during an election year. This could cause instability in the checks and balances of the United States Government. Supreme Court justices could choose to step down from their position at key moments of the election period and cause issues with the passage of legislation and decisions on cases within that time period. In the second case, which would also prevent such a scenario from happening again, could allow for someone unfit to enter the Supreme Court if senators voted on party lines rather than what is actually just. In this scenario, one could argue that Justice Barrett is far too inexperienced in the court of law as she has only been a federal judge since 2017, giving her just over three years of experience. This could also throw off the balance of power by giving a president the opportunity to simply nominate someone based off of their party alignment just to force a vote and acquire a seat on the Supreme Court for their party rather than consider the long term effects of having an inexperienced Justice and not nominating someone fit for the position. In the third case, having a national referendum on the issue at the beginning of each election year has several pros and cons. While this does give the citizens of America a voice on the matter pre-election, it also doesn’t imply that the senate must follow this referendum and may choose to stall the nomination until it lapses. The issue of having a senate that lapses the nomination of one president and then proceeds to fast track the vote on the nomination of another president still remains.In the final case, the introduction of the House of Representatives has the potential to balance the issue. In the case of Congress having opposite party majorities in the Senate and House of Representatives, the House could have the opportunity to prevent a nominee from entering the Supreme Court during election years. This could work similarly to a national referendum in terms of the House of Representatives closer representing their constituents ideology. In the case of a yes from the House and a no from the Senate ‒ or vice versa ‒ the remaining members of the Supreme Court could deliberate the issue and become the deciding factor on the nomination.

Lastly, the topic of whether or not any of this should matter comes into question. Those seated on the Supreme Court are meant to be neutral, above the party system and base their rulings and decisions off of the text of the Constitution. As previously mentioned, President Obama argued that the political alignment of the president and Senate should be disregarded during the confirmation of a nominee so long as the nominee is worthy and deserving of being on the Supreme Court. In a perfect world, this would be exactly what would happen. Those considered just and fair would be confirmed onto the Supreme Court despite party lines and whether or not it is an election year. Unfortunately, this simply isn’t how the United States government operates. The division across parties in the United States in today’s political system makes for an uphill battle when attempting to pass a bipartisan action. Be it for a new law or regulation or the confirmation of a new Supreme Court Justice, the current “us versus them” thought process of today’s political climate simply kneecaps the chances of unbiased decision making within congress, making it nigh impossible to have effective, productive discussion no matter the topic; for example, the handling of an extension of the CARES Act which has been dead in the water in favor of quickly confirming Justice Barrett.

The issue of Supreme Court nominations during an election year is certainly an interesting and complex topic with many routes to attempt to resolve it. There is no clear, set in stone path to take but it appears that the United States as a whole should be discussing and working toward a resolution for this issue before the next instance of an election year vacancy on the Supreme Court occurs. With six out of eight of the current Supreme Court Justices being above the age of sixty, the likelihood of a death or resignation during an election year remains ever present.

Notes

[1] “Supreme Court Nominations, 1789 to 2018: Actions by the Senate, the Judiciary Committee, and the President.” Federation of American Scientists, October 9, 2020. https://fas.org/sgp/crs/misc/RL33225.pdf.

[2] Kelly, Amita. “McConnell: Blocking Supreme Court Nomination ‘About A Principle, Not A Person’.” NPR. NPR, March 16, 2016. https://www.npr.org/2016/03/16/470664561/mcconnell-blocking-supreme-court-nomination-about-a-principle-not-a-person.

[3] Naham, Matt. “Mitch McConnell Confirms That the Senate Intends to Install Amy Coney Barrett on Supreme Court Before Election Day.” McConnell: Senate Will Confirm Amy Coney Barrett Before Election | Law & Crime. Law & Crime, October 16, 2020. https://lawandcrime.com/supreme-court/mitch-mcconnell-confirms-that-the-senate-intends-to-install-amy-coney-barrett-on-supreme-court-before-election-day/.

[4] What Amy Coney Barrett Said about Filling a Supreme Court Seat in an Election Year, 2020. https://www.youtube.com/watch?v=DAfzFHeqIpA.

[5] Betz, Bradford. “Alexander: McConnell Doing What Dems ‘Would Do If the Shoe Were on the Other Foot’ with SCOTUS Nomination.” Fox News. FOX News Network, September 20, 2020. https://www.foxnews.com/politics/alexander-shoe-other-foot.

[6] Puckett, Jason, and Terry Spry. “VERIFY: McConnell Cites Accurate Data in Supreme Court Precedent Argument, but Leaves out Important Context.” king5.com, September 24, 2020. https://www.king5.com/article/news/verify/mcconnell-supreme-court-precedent-fact-check/507-05077bd3-b76e-4646-b4ea-8f8f9f5befa9.

Further Reading

Simon, Paul. Advice & Consent: Clarence Thomas, Robert Bork, and the Intriguing History of the Supreme Court’s Nomination Battles. Washington, D.C.: National Press Books, 1992.

Davis, Richard. Electing Justice: Fixing the Supreme Court Nomination Process. New York, NY: Oxford University Press, 2005.

Worcester State University Fall 2020