Nothing but precedent to see here
There is an inescapable truth when it comes to precedents (or presidents in Donald Trump’s case), they can be broken. Over the eight years of the Obama presidency we witnessed the Republican Party break just about every precedent that had been set in our history. Here is another fact; Republicans and their supporters do not care. Even worse they ignore it and expect us not to do the same.
The other day I posted on Facebook about my feelings towards Republicans being upset that Democrats are beginning to use their obstructionist methods against them. One of the commenters on the post decried the unprecedented nature the Democrats were taking. They went so far as to claim that a Supreme Court justice had not been considered during an election year in 80 years (it had actually been less than 30 in 1988).
Here is the thing; Republicans and their supporters want us to forget what happened throughout the Obama presidency. This same poster also claimed that it was unprecedented that a nominee would be held up for three years if Democrats follow through with their threat. I pointed out the case of Cassandra Butts, who Republicans held up for 835 days without a hearing or a vote. The only reason it did not go further is because she died. This poster did not really seem to care, because only today counts.
Supreme Court Precedents
In the poster’s attempts to school me on history (despite the fact that I have a Master’s degree) this person attempted to convince me that leading up to Obama’s pick for the Supreme court that there was no precedent set. This poster also fed me the Republican line of letting the voters decide (which they did in 2012).
So, me being me, I went and looked at all 112 justices to have been confirmed for the Supreme Court. There is one heck of a precedent historically that has been set and Republicans and their supporters will not like it. Of the 112 justices on the bench 15 of those seats have come open in the final year of a president’s term. Presidents who did not fulfill their term (either by resignation or death) were not looked at. However, all presidents were examined at the onset of their term.
Of those 15, 11 seats were filled either within a year of the end of a term or within the final two months of the term. Five of the eleven were confirmed between January and March of the president’s final day in office (the presidents terms originally began in March). One of these, John Catron, was actually confirmed four days after Andrew Jackson left office, but it was his appointment.
Oddities Outside of Precedent
Two presidents actually had two Supreme Court justices confirmed within the last year of their presidency: Andrew Jackson and Benjamin Harris.
We can actually look to our past to draw direct parallels to what is happening today. I know, I have stated this before. The funny thing is, history keeps repeating itself.
Stanley Matthews was appointed to the Supreme Court by President James Garfield. He was confirmed on May 12, 1881 by a narrow 24-23 vote. The vacancy that Matthews was filling had come open on January 24, 1881 when Noah Swayne had retired.
Rutherford Hayes had appointed Stanley Matthews but the Senate decided not to vote. When Garfield took office he re-nominated Matthews.
The other oddity came when David Davis resigned his Court seat the day before (March 3, 1877) Rutherford Hays was set to take office.
Republicans Do Have One Precedent
On July 19, 1852 Supreme Court Justice John McKinley passed away and Millard Fillmore attempted to fill the seat. He made four nominations between McKinley’s death and the end of his term. Democrats who held the Senate refused to vote on any of the nominations that made it the floor. After Franklin Pierce (Democrat) took office, he appointed John Archibald Campbell and was confirmed on March 22, 1853.
That is the only case that matches what the Republicans did. One out of fifteen. That is not precedent.
It is also important to mention Anthony Kennedy. He is currently a justice on the Supreme Court. He was appointed by Ronald Reagan in the final year of his term. Republicans like to point to this and specifically at Joe Biden. They credit him with the Biden Rule (essentially not to approve any appointments in the final year of a president’s term). However, Republicans are the only ones to use the so-called Biden Rule as Kennedy was confirmed for the seat by a 97-0 vote. Why Republicans chose to use this as their precedent instead of the one mentioned above (that actually worked) is beyond me.
Republicans Have Ended Precedents
Do not be fooled, any semblance of precedent on how Congress is supposed to work is gone. We had over 200 years to show us how Congress works best. Republicans destroyed all that within an eight year period. Now, suddenly, they want things to go back to the way they were before. I hope our Democrats in Congress have the spine to stand up to the Republicans. I doubt it, but I do hope.