Supreme Court Nominations

With the death of Antonin Scalia on Saturday there is a new political fight over nominating his replacement. Republicans want to delay until after the Presidential election ( hoping that one of their candidates will win ) and Democrats want to go forward now.

I started hunting for data on previous Supreme Court nominations to see what had happened in previous terms. Fortunately the U.S. Senate site has data on every Supreme Court nomination going all the way back to 1789 ( Washington holds the record for the most nominations at 14, of that 10 were confirmed ). Using that information I put together a spreadsheet on Supreme Court nominations. You can download an Excel version of it here.

This situation hasn’t come up very often. The last confirmed nomination that happened this close to the end of a Presidential term was Benjamin Cardozo on Feb 15, 1932 by President Herbert Hoover, his term ended March 3, 1933. The senate only took 9 days to confirm Cardozo.

If you expand the time range a bit, you do get more recent similarities. On 30 Nov 1987 President Ronald Reagan nominated Anthony Kennedy, who went on to be confirmed 97-0 after 65 days. That nomination happened when Reagan only had 417 days left in office.

Let us assume that President Obama puts forward a nomination on 1 Mar 2016. His last day in office will be 20 Jan 2017, putting it at 325 days before his term ends. Making the difference between this hypothetical situation and the real situation Reagan had just 92 days ( ~3 months ). That doesn’t seem like a huge difference.

Another question is, how long will it take to confirm a new nominee? The longest single nomination process was for Louis Brandeis back in 1916, at 125 days. The historical average for all confirmed nominees is 24.5 days. If we expand to all nominees ( confirmed and not ), and limit the time scope to the last 46 years ( since 1970 ), then we get an average of 64 days.

The Presidential election is on 8 Nov 2016, which would leave 252 days between a March 1st nomination and the election. That would be more than enough time to “Advice and Consent” on a nominee. From Article 2, Section 2 of the U.S. Constitution that outlines powers of the President ( emphasis mine ):

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

This is going to be a heated topic of discussion for some time. Politifact even started looking at lower court nominees in “Do presidents stop nominating judges in final year?” ( the answer is no ).

If the situation were reversed I would expect the Democrats would want to delay and the Republicans would want to nominate now. The arguments are going to be over how people can get what they want, not what the law is.