Dear Commons Community,
The death of Supreme Court Justice Antonin Scalia has touched off another heated partisan battle between President Obama and the Congress. President Obama feels it is his constitutional responsibility to replace Scalia now while Republicans in the Senate indicated they will not confirm any nominee until a new president is in office in January 2017. The media has been closely following this story for the past two days. Timothy S. Huebner, the Sternberg Professor of History and Chair of the Department of History at Rhodes College, has an op-ed piece in today’s New York Times providing an historical perspective of the issue. Here is a summary:
“…history supports Mr. Obama. On 13 occasions, a vacancy on the nation’s highest court has occurred — through death, retirement or resignation — during a presidential election year. This does not include the most recent and frequently cited example, Justice Anthony Kennedy, who was nominated by Ronald Reagan in November 1987 to fill a vacancy and won confirmation from a Democratic-controlled Senate in February 1988.
In 11 of these instances, the Senate took action on the president’s nomination. In all five cases in which a vacancy occurred during the first quarter of the year the president successfully nominated a replacement.
In the first of these instances, in January 1804, Justice Alfred Moore resigned from the court, and President Thomas Jefferson, who was running for a second term, successfully nominated a successor. In January 1892, the death of Justice Joseph Bradley prompted President Benjamin Harrison to nominate George Shiras Jr. to take his place. Although Mr. Harrison was locked in a race for re-election against Grover Cleveland, the Senate confirmed Mr. Shiras at the end of July. Mr. Harrison lost, but Justice Shiras remained on the court for the next decade…”
Dr. Huebner goes on to review a number of other similar situations. His conclusion:
“To be sure, the Senate has rejected nominees for political reasons, increased the size of the court (for instance, during the Civil War) or reduced it (immediately after the Civil War). But in cases when vacancies have arisen during election years, the weight of history is clearly on the side of the president naming a successor and the Senate acting on that nomination.”
I doubt that the Senate Republicans will be swayed by Dr. Huebner’s history lesson.