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| Justice Joseph Rucker Lamar (1857-1916), via New Georgia Encyclopedia. |
In the normal case a new justice is named when an old justice retires, and is available to serve, however crankily, until the new justice is confirmed with the advice and consent of the Senate. The really problematic situation, where there are only eight justices and the strong possibility of failing to reach a majority in an excessive number of cases, only happens in the much rarer event of a justice's death or resignation with immediate effect.
So Dr. Google and I would like to report: Scalia is the first justice to have died during an election year since 1916, when Joseph Rucker Lamar of Georgia died in the middle of term on January 2, and on January 29 Woodrow Wilson "surprised the nation" by nominating Louis Brandeis to succeed him. Brandeis took rather a long time to confirm, until June 1, for some reason or other—
"What Brandeis's opponents most objected to," write Klebanow and Jonas, "was his 'radicalism'." The Wall Street Journal wrote, "In all the anti-corporation agitation of the past, one name stands out ... where others were radical, he was rabid."[2] And the New York Times also felt that having been a noted "reformer" for so many years, he would lack the "dispassionate temperament that is required of a judge."[36]:73 Justice William O. Douglas, many years later, wrote that the nomination of Brandeis "frightened the Establishment" because he was "a militant crusader for social justice."[28]
According to legal historian Scot Powe, much of the opposition to Brandeis' appointment also stemmed from "blatant anti-semitism."[35] Taft would accuse Brandeis of using his Judaism to curry political favor, and Wickersham would refer to Brandeis' supporters (and Taft's critics) as "a bunch of Hebrew uplifters."[37] Senator Henry Cabot Lodge privately complained that "If it were not that Brandeis is a Jew, and a German Jew, he would never have been appointed[.]"[38]—but nobody is known to have suggested that the appointment should be put off until after the November elections, and the vote when it came was a pretty favorable and mostly partisan 47-22 (29 of the 96 senators didn't show up for the vote!). Nor did people complain when associate justice Charles Evans Hughes abruptly quit the court on June 10, specifically in order to run for president; more acquiescent than on the Brandeis nomination, they confirmed John Hessin Clarke unanimously on July 24, just over a week after Wilson nominated him. (Two election-year nominations in 1916, as in 1972.)
Still more interestingly for the Grassley question, when the first John Michael Harlan died October 14 1911, not an election year, President Taft was apparently unable to think of a successor until weeks into the election year 1912, when he met Mahlon Pitney, the chancellor (or topmost judicial official) of New Jersey,
at a dinner in Newark and was so impressed by their conversation together that he announced his nomination of Pitney for a seat on the Supreme Court a week later, on February 19.Thus demonstrating that however unimportant it may be to make sure we have a full complement of nine justices, it is still less important to avoid naming them in a year divisible by four. Senators Grassley and McConnell and Lee can rest their minds on this score.
Generally speaking, presidents and congresses have worked pretty closely together to replace a dead justice fairly quickly in the 20th century, in particular when the justice had the sense to die outside of term time: when Frank Murphy died July 19 1949, he was replaced by Tom Clark on August 19; Wiley Rutledge, September 10 1949, was replaced by Sherman Minton October 12; chief justice Harlan Stone (the first chief justice who had never held elective office), April 22 1946 (apparently as the term's work was basically finished—stricken by a cerebral hemorrhage as he was reading a dissent from the bench!), by Fred Vinson June 22, and chief justice Vinson, when he died in turn on September 8 1953, was replaced by Earl Warren October 5 (by a unanimous Senate with Republican majority). In the new century chief justice Rehnquist, September 3 2005, was succeeded by John Roberts on September 29.
But Benjamin Cardozo died around the end of term July 9 1938 and wasn't replaced until Felix Frankfurter was confirmed January 17 (that court got a lot done, too!), and it often took a fairly long time to replace justices who died during term time as well; Edward Terry Sanford, March 8 1930, was replaced by Owen Roberts on the last day of term, May 20 (after the Senate rejected President Hoover's nomination of John J. Parker, March 21, because of labor and NAACP opposition). That term had had a rough beginning, as Chief Justice Taft, suffering from heart ailments and, starting in January, hallucinations, resigned in February, replaced with some sharp disagreement in the Senate by Charles Evans Hughes, who returned to the Court after his 14-year absence on February 13. Pierce Butler, November 16 1939, was replaced by Frank Murphy January 18 1940 (making for the first time a majority of the justices FDR appointees).
Finally, Robert Jackson, October 9 1954, replaced by John M. Harlan March 28 1955 (Harlan, in the wake of Brown vs. Board of Education, and opposition from Southern senators who suspected his pro-integration views, was the third nominee after Brandeis to endure questioning by the Senate Judiciary Committee—the others were Harlan Fiske Stone in 1925 and Frankfurter in 1939; since Harlan all have been questioned). Since Jackson died at the very beginning of the term, arguments in major cases were put off until Harlan was sworn in.
While it is clear that no nomination has ever been delayed to await the outcome of a presidential election, at least since 1912, the replacement of a dead justice has certainly been delayed now and again, often when the nominee was Jewish (Frankfurter) or thought to have enlightened views on racial issues (Harlan), or both (Brandeis). It looks as if this is the pattern the Republican Senate is about to repeat.
I don't want to sound too much like a concern troll, but I think they'll be making a mistake if they do.
For one thing, they will be gaining very little in terms of decisions averted by preventing a nominee from getting confirmed: as Tom Goldstein at ScotusBlog reports,
The passing of Justice Scalia of course affects the cases now before the Court. Votes that the Justice cast in cases that have not been publicly decided are void. Of course, if Justice Scalia’s vote was not necessary to the outcome – for example, if he was in the dissent or if the majority included more than five Justices – then the case will still be decided, only by an eight-member Court.
If Justice Scalia was part of a five-Justice majority in a case – for example, the Friedrichs case, in which the Court was expected to limit mandatory union contributions – the Court is now divided four to four. In those cases, there is no majority for a decision and the lower court’s ruling stands, as if the Supreme Court had never heard the case. Because it is very unlikely that a replacement will be appointed this Term, we should expect to see a number of such cases in which the lower court’s decision is “affirmed by an equally divided Court.”And because most of the district courts are far less conservative than the Scalia court has been, this means that the lower court's decision in Friedrichs, allowing unions to collect fees from nonmembers (to pay for the collective bargaining whose benefits they get to partake in), will stand, as will liberal lower court decisions in the Evenwel case where conservatives tried to engineer a novel concept of drawing electoral districts by number of voters instead of population, and the case of the wealthy Little Sisters of the Poor trying to prevent their nursing home employees from getting contraception as part of their health benefits. (Update: Some other decisions, particularly the stay on EPA regulation of coal-fired power plants, and the underhanded Texas attempt to effectively bar most of the state's women from access to safe abortion on the basis of bogus safety concerns, will remain on the wrong side, although Republicans might want to note that coal is dying anyway because it's just too expensive; I believe a decision affirming the Texas block on the president's program to defer deportation for certain undocumented immigrants is likely to be contradicted by decisions from other appeals courts that the Supremes will also affirm, passively, by declining to hear the appeals, meaning pure chaos in that area, and similar chaos is likely in the issue of abortion restrictions.)
At the same time they'll be providing the Democrats with issues in the November general elections that reinforce some of the most compelling issues already in place, those of Republican irresponsibility and negligence in government, their willingness to shut the whole process down to make a minor political point, their refusal to carry out the work they're paid for, their preference for posturing on TV, their remorseless anti-government negativity, their vote for stagnation on all levels. And their desire to thwart the wishes of the American people on issues like abortion and marriage equality and climate change and probably immigration as well.
And the Supreme Court itself! We've been telling people for years now that they have to vote Democrat to prevent the destruction of the Supreme Court, and now they're out to prove that it's true!
I don't see how anybody who saw last night's Republican debate can believe they saw a president among the clowns there anyway, unless they're planning a write-in campaign for Major Garrett, but if the party is ready to try to suffocate the Supreme Court as well as the other two branches of government, out of the usual combination of racism and terror of change, they're asking to lose on a much larger scale than that.
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