Senate Republicans claim that their reversal on Supreme Court nominations—refusing to vote on President Barack Obama’s nominee in 2016, then agreeing to vote on President Donald Trump’s nominee in 2020—isn’t hypocritical. They say they’re just followed precedents. When the president and the Senate represent “different parties, the historical norm is that such [election-year] nominations are not confirmed,” Senate Majority Leader Mitch McConnell asserted on Tuesday. But when the president and the Senate represent the same party, said McConnell, nearly “every such nominee has been confirmed.”
McConnell’s rationalization is bogus. What Republicans did in 2016 was unprecedented. So is what they’re doing now.
The best presentation of the GOP’s argument, cited by the White House and several Republican senators, is an Aug. 7 article by Dan McLaughlin in National Review. McLaughlin details the history of election-year nominations. He summarizes them in two tables. One table shows what happened when the president’s party controlled the Senate; the other shows what happened when it didn’t. McLaughlin thinks the tables support McConnell. But they also expose differences between past nominations and the GOP’s current behavior.
McLaughlin’s first table, below, lists 10 Supreme Court vacancies that opened when the president’s party didn’t control the Senate. There’s no clear pattern in the four cases that closely resemble today’s situation: those in which a vacancy occurred—and nominations or recess appointments were made—in an election year and before the election. In the first two cases, 1844 and 1852, the Senate blocked the president’s nominees. But in two more recent cases, it confirmed them. In 1888, a Republican Senate confirmed a nomination by Democratic President Grover Cleveland. In 1956, Republican President Dwight Eisenhower appointed William Brennan to the court during a Senate recess, and a Democratic Senate confirmed Brennan five months later.
So when Obama nominated Merrick Garland to the court in 2016, rejection of such nominations wasn’t the norm. The ratio of confirmations to rejections was 50–50, and the trend—if you can call it that, in a sample of four—was toward confirmation. You could enlarge the sample, as the table does, to include a vacancy that opened at the end of 1843 (prior to the 1844 election), as well as three cases in which the vacancy or the nomination came after the election (1828, 1860, and 1880). But in two of those four cases, the president eventually got a nominee confirmed. So the ratio is still 50–50. Or you could exclude the 1956 case, on the grounds that Brennan wasn’t confirmed until March 1957. But you could just as easily include Anthony Kennedy—a Republican nominee who was confirmed by a Democratic Senate in 1988—which, again, makes the ratio 50–50.
McLaughlin’s second table, below, shows six cases in which 1) the president’s party controlled the Senate, 2) the vacancy occurred during the election year, and 3) a nomination was made before the election. In one of these cases (1968), senators filibustered a nominee over corruption. In another case (1916), one-third of the Senate voted against the nominee. In the other four cases—1804, 1892, 1932, and a different 1916 case—the nominee was unopposed. Those consensus nominations aren’t precedents for partisanship. They’re precedents for conciliation.
If we look at the table’s full list of same-party nominations, there are 18 in which the nominee was confirmed. But check out the percentage of votes against each nominee, shown in the “No Votes” column. In 14 cases, there was no or almost no opposition. Only once, in 1837, did more than 35 percent of senators vote against a successful nominee—and in that case, the nominee declined to serve. There are no cases in which a party rammed a new justice through a closely divided Senate, over the united opposition of the other party, in an election year.
Next, look at the presidents listed in the table. Only one, Benjamin Harrison, lost the popular vote while winning the Electoral College. His nominees were confirmed without opposition. The other 12 presidents who got election-year nominees through the Senate, including the three who did so in the face of significant opposition, had won the popular vote. Of the five presidents who have ever won elections while losing the popular vote, Harrison is the only one who got all his Supreme Court nominees through. The others who preceded Trump—John Quincy Adams, Rutherford B. Hayes, and George W. Bush—all suffered defeats or withdrawals. Trump would be the first popular-vote loser to get an election-year nominee confirmed since 1892, and he’d be the first ever to do it by ramming the nominee through in the face of opposition.
And what about the senators who voted on these nominations? What kind of mandate did they have? The table shows four cases in which a president got a heavily contested nominee through a Senate controlled by his own party in an election year. Two of these cases were in 1837; the others were in 1912 and 1916. In each of these cases, the majority party in the Senate had a clear mandate: In the previous midterms, it had won more seats than the opposition party.
That’s not true of today’s GOP. It lost 24 of the 35 Senate races on the ballot in 2018. Mostly, that’s because the majority of incumbents up for election were Democrats. But that’s another way of saying that Republican incumbents weren’t on the ballot. In a year when voters swept Republicans out of the House of Representatives, the only thing that stopped them from sweeping out Republican senators was that those senators were beyond the voters’ reach. This would be the first Senate majority ever to ram through a contested election-year nominee after failing to win most of its races in the previous midterms—let alone after suffering such an electoral rebuke in the House.
McLaughlin has a very different analysis of the tables, which you can read in his August piece and in his 2017 article on Supreme Court confirmations. Both essays are well-argued and full of useful information. In a way, we’re like dueling lawyers before the court: He sees similarities to past cases where I see differences, and vice versa. But in my book, the differences are stark and grave. The GOP’s behavior in 2016 and 2020 isn’t just hypocritical. It’s wildly unprecedented. And a party that invents its own precedents can expect the other party to do the same.