Yesterday, President Barack Obama named Merrick Garland—a judge on the Washington, D.C. court of appeals respected on both sides of the aisle—to be Justice Antonin Scalia's replacement on the Supreme Court. He said it was his constitutional duty as chief executive to choose a nominee, and implored the Republican-controlled Senate to fulfill their end of the bargain and meet and vote on Garland's confirmation.
Senate Majority Leader Mitch McConnell had other plans, however.
"It is a president's constitutional right to nominate a Supreme Court justice," he said on the chamber's floor yesterday, "and it is the Senate's constitutional right to act as a check on a president and withhold its consent."
Is there historical precedent for the showdown taking place?
Jeffrey Rosen, constitutional scholar, law professor, and author of "Louis D. Brandeis: American Prophet," says that some examples come close.
He points toward the example of Louis Brandeis, the first Jewish Supreme Court Justice. It took 125 days after his nomination by President Woodrow Wilson in 1916 to get approved by the Senate—slowed by anti-Semitism and fear over his vocal opposition to corporate monopolies and criticism of big banks.
But in the end? "The vote wasn't close," Rosen said. "Almost all the Democrats voted for Brandeis. Only one senator from Nevada defected. He got a couple of Republican votes, there were a bunch of abstentions."
A more recent parallel can be found in the case of Abe Fortas, nominated by Lyndon Johnson in the last year of his presidency in 1968. Despite ethical issues around his nomination—Fortas had served as an adviser to Johnson— the Senate agreed to a hearing.
"He was filibustered, there was no up or down vote," Rosen explained. "That's more of a precedent for the case that: at least he got a hearing."
Finally, Rosen looks toward an oft-cited example in the past few days: when, in 1992, then-Senator Joe Biden proclaimed that President George H. W. Bush should delay putting forward a nominee for the court should a vacancy arise. Two decades later, serving as second-in-command to a president looking to do just that, Biden's stance has been criticized as hypocritical.
But Rosen says that both sides have been politicizing the highest court in the land for a long time—and will continue to do so for much longer.
"That's why the huffing and puffing about what the Constitution requires seems a little extreme," Rosen said. "It's all politics."
Jeffrey Rosen is president and CEO of the National Constitution Center, professor of law at George Washington University Law School, and the author of Louis D. Brandeis: American Prophet.
