Much is being said about just who should be able to appoint the Supreme Court nominee to replace Justice Ruth Bader Ginsberg. Why is this so important? Because with the average age skewing lower, the appointment to the court could be one of only three (based on age considerations alone) for the next 15 to 20 years.
Both side put forth persuasive “facts” to support why we should or shouldn’t hold hearing and push through a nominee before the November election. But as we all know – there always seems to be two sides to every “fact.”
Just to put perspective and my own little fact checking on all the spin on both sides about the future SCOTUS nominee – here is what I’ve discovered.
There have been 29 cases over the years where a nomination occurred in a Presidential election year. Senator McConnell is right in saying that when the Senate and Presidency were in the same party the nominations went through either in the pre-election, or in lame duck session. In the other 10 cases where the Senate and White House were held in opposition only 1 of the 10 got decided prior to the new Congress. So 1 point to Republicans for basic historical accuracy.
HOWEVER (isn’t there ALWAYS a however)… Unlike what McConnell, et.al. said in 2016, this was NOT due to giving the people a say in the who should be chosen. It was due to the Senate being out of session during the summer and fall. A common practice to avoid the sweltering weather in Washington DC. In nine of these cases 6 were due to Senate being in recess during summer and election periods. Of the remaining 3, one was pre-Civil War and one was Merrick Garland (Obama’s nominee) So -1 point to Republicans for misleading. As a side note there were SEVERAL nominees during midterm election years including Scalia, Arthur Goldberg, George Sutherland, Brett Kavanaugh and David Souter
Constitutionalists would like to argue that he Constitution in Article 2, Section 2, makes no provisions for consideration for election cycles and court vacancies. However, Senator McConnell et.al. have like to cite “past precedence” in their speeches. So is there a precedence? Arguably there is -and it was established in 2016 by Senate Leader Mitch McConnell. As it appears that the ONLY time it was ever stated that a SCOTUS nominee should be delayed for the outcome of an election was when he stated that the American people should have a say in who their next SCOTUS nomination should be when arguing against moving Merrick Garland’s nomination forward. So -1 Point to the Republicans for what can be seen as nothing more than hypocrisy?
And for those of you who will question where I am getting my data, one was a review of the history of the SCOTUS appointments; and the context behind them was from the National Review. For those not into political journals, the National Review is a conservative editorial magazine.
A View from the Purple Seats 