Nominating a Supreme Court Justice in an Election Year Is the Principled “High Ground” Uninhabited?

On Wednesday, President Obama nominated Merrick Garland, chief judge of the U.S. Court of Appeals for the D.C. Circuit, to the Supreme Court. The New York Times initial report on reaction to Judge Garland’s Supreme Court nomination confirms this will be a partisan fight, with both sides claiming they stand on principle. Rather than just marking this up to politics-as-usual, it is interesting to see how Republicans and Democrats have selectively framed their responsibilities and the precedents set by history. This blog will examine the reasoning patterns underlying the Republicans’ claims. The next blog will do the same with the Democrats’ claims. (I predict Democrats will be more likely to forward this blog while Republicans will be more likely to forward the next one).

According to quotes from the Republican leadership in an NPR article, the Republicans are standing on a direct-democracy principle, declaring that the Presidential election should decide who gets to nominate — or approve (or both), subject (or not) to the opposing side’s later opposition — the next Supreme Court justice. Senate Majority Leader Mitch 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.” Speaker of the House Paul Ryan supported the Senate’s “decision not to move forward with the confirmation process. We should let the American people decide the direction of the court.”

The initial basis for the Republicans’ preemptive disapproval was stated as “80 years of precedent” (Ted Cruz) and “standard practice over the last 80 years” (Senator Grassley). If you didn’t look into the details, this is undeniably, factually correct. Eighty years ago would be 1936 and no Supreme Court justice has been nominated in an election year from 1936 to now.

Eighty years sounds like a long time, but that is misleading frame. There have been just 20 election-years during that period, which is the only time the issue could come up. Supreme Court justices have to step down or die while on the bench for the President to need to nominate a replacement, and they rarely do either. For the 38 justices leaving the Court in the last 80 years, their average tenure was 18.5 years. The last 9 justices leaving the Court served an average of more than 28 years and only one left after less than 20 years. (Justice David Souter served 19 years before retiring in 2009.) Four sitting justices have served over 20 years.

In particular, justices stave off retirement thoughts and even death in election years in order to avoid just this kind of tumult. Out of 106 justices who have died or retired since 1789, only 13 left during election years. If the justices’ replacement times were truly random, 25% (or 26–27) would have occurred in election years. Of the 13 who left, 8 died and 5 resigned. Two of the resignations were in 1800 and 1804.

In addition, doesn’t “80 years” seem like an arbitrary boundary? In 1936, nothing notable happened that established or changed practices related to Supreme Court justices. Without even checking, I was sure something must have happened in the election year before 1936.

In fact, something very significant happened 1932. President Hoover was running a doomed reelection campaign after plunging the U.S. into the Great Depression. In January, Justice Oliver Wendell Holmes, then the oldest-ever justice at 90 years old, retired, supposedly at the behest of some other justices. Even though Hoover was clearly entering an unpopular last year in office and preparing for a massacre in the general election against Franklin Roosevelt, in February he nominated Benjamin Cardozo, who was quickly confirmed.

Twenty years before that, exactly 100 years ago, in the election year of 1916, President Woodrow Wilson had the opportunity (which he took) to nominate TWO justices. Not only was there no practice of halting the confirmation process to “let the voters decide” through the election but there would have been ample grounds for using such a practice if it indeed existed.

In the first instance, Justice Lamar died unexpectedly in January 1916. President Wilson, the first Democrat after 16 years of Republican Presidents, nominated Louis Brandeis, a move that created a harbinger the kind of fighting during the Robert Bork nomination, where the nominee is clearly qualified but highly partisan.

Apart from facing unbridled anti-Semitism, Brandeis also brought a series of social views that made him highly politicized: many positions in opposition to large corporations, a specific fight against J.P. Morgan’s railroad monopoly, representing workers to defend the constitutionality of protective labor laws, and generally advocating that laws might be interpreted by courts to achieve activist social ends.

That’s exactly the kind of philosophy that Senator Grassley pointed to on Wednesday in defense of halting consideration of a Supreme Court justice in an election year: “The American people shouldn’t be denied a voice. Do we want a court that interprets the law, or do we want a court that acts as an unelected super legislature?” If that applies to nominee Garland in 2016, it was screaming to be applied to nominee Brandeis in 1916 — and it wasn’t. After a long, contentious nomination process, Brandeis was confirmed by the Senate, 47–22.

The other seat that opened in 1916 sets an even stronger precedent, if that’s possible, for going ahead with the nomination process in an election year. In June 1916, just 5 months before the election, Justice Charles Evans Hughes resigned from the Supreme Court to accept the Republican Presidential nomination to oppose Woodrow Wilson in the November election. In July, Wilson nominated John Clarke to succeed Hughes, and the Senate unanimously confirmed him.

The rationale of leading Republicans opposing the nomination, whether stated as “giving the voters a voice” or “following established practice,” demonstrates how the use of frame can shape the way we think about the problem. Once we understand that 80 years is not an arbitrary time period to look at since the precedents fall directly before that cut off, we can see how that frame is misleading. The question should not be “how long has it been without a justice being nominated in an election year?” but rather “what has happened when there is a vacancy in an election year?” Of course, asking the second question does not seem to further the argument to not hold hearings particularly well so a change in frame in not that surprising.

In my next blog, I’ll explain how the scientific method helps us scrutinize equivalent weaknesses in the Democrats’ guiding principle in this fight.

Author of Thinking in Bets and How to Decide. Co-founder of The Alliance for Decision Education

Author of Thinking in Bets and How to Decide. Co-founder of The Alliance for Decision Education