I’m reprinting this Facebook post with the permission of retired District Court Judge Jim Dannenberg.
Just for the record, there is absolutely no precedent for the Senate’s declining to hold good faith confirmation hearings for a Supreme Court nominee in an election year. Suggestions to the contrary reflect complete partisan casuistry. In fact, since 1912 there have been eleven nominations/confirmations of Supreme Court Justices during the year preceding a presidential election. Only two failed to be confirmed, for reasons unrelated to timing.
Justice Mahlon Pitney nominated March 13, 1912, and confirmed March 18, 1912.
Justice Louis Brandeis nominated January 28, 1916, and confirmed June 1, 1916.
Justice John Clarke nominated July 14, 1916, and confirmed July 24, 1916.
Justice Benjamin Cardozo nominated February 15, 1932, and confirmed February 24, 1932.
Justice Frank Murphy nominated January 4, 1940, and confirmed January 24, 1940
.Justice William Brennan nominated and given a recess appointment October 1956 and confirmed in 1957.
Justice Abe Fortas was nominated as Chief Justice in 1968 (along with Homer Thornberry to fill Fortas’ seat as Associate Justice). Both nominations were withdrawn in response to a bipartisan filibuster related to ethical concerns about Fortas. There was no issue raised about election year nominations.
Justice Lewis Powell nominated October 22, 1971, and confirmed December 7, 1971.
Justice William Rehnquist nominated October 22, 1971, and confirmed December 10, 1971.
Justice Anthony Kennedy nominated November 30, 1987, and confirmed February 3, 1988.
The following day, Dannenberg wrote the following comment and linked to an article from the Brennan Center for Justice (“Shun a President’s Supreme Court Nominee? Alexander Hamilton Would Not Be Pleased“).
I’m posting more than usual, but this is an important issue. The Senate Majority leadership has been disgracefully dishonest about the law, the history of Supreme Court appointments, and their motives for refusing to honor their oaths to follow the constitution.
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Unprecedented government action occurs all the time. Take for example an administration that wants to issue work permits for more than 4 million people that have lived in the United States illegally for at least 5 years. This sounds like a great amnesty program, but it subverts the law making role of Congress. So why should we be surprised if Congress isn’t playing ball with the Executive?