Precedential Powers

Concerned Senator Hatch is concerned. Image via Brigham Young University.

Old Orrin Hatch on NPR explaining how there is NO PRECEDENT for a TERM-LIMITED PRESIDENT in his FINAL YEAR OF OFFICE to NAME A SUPREME COURT JUDGE, therefore it's outrageous to even think about it.

That's how narrowly he has to define it in order to cobble together some kind of truth out of the lies being told by Senators Grassley, McConnell, Lee, and so on. But I think you need to understand that according to my research there are exactly zero times in American history when these conditions have been met.

There could not be a term-limited president until after the 22nd Amendment was ratified in 1951, and since then there have been four years when there was one in his final year (1960, 1988, 2000, and 2008—Nixon, of course, was in his final year in 1974 but the president in the general election year was Ford), and no Supreme Court justice died or resigned in any of those four years, which is really not surprising, because, like most people, Supreme Court justices really don't die or resign any more often than they can avoid it (the exception being, of course, Charles Evans Hughes, who resigned twice, in the election year 1916 and in 1941), and there aren't very many of them.

Scalia, always a spitballer, shattered his last Supreme Court precedent in the last act of his life, by leaving it at a moment when no justice has ever left before. There's no precedent for the whole situation, Senator Hatch, so there's no precedent for the president not to name a new justice either. And that's not all.

If you want to start talking about precedents, there is no precedent for a president to leave a vacancy in the Court until after a general election; the longest delay I've been able to find is that weird case in 1911, when President Taft waited until an election year, four months from mid-October 1911 to mid-February 1912, to make his choice.

And there is no precedent for a Senate to refuse to fill that vacancy for eleven months and leave the Court with an even number of members, as this Senate threatens to do. The longest delays from nomination to confirmation I've been able to find where there was no retiring justice to fill in in the interim were the five months it took to confirm Felix Frankfurter in 1938-39 (still soon enough to allow Frankfurter to participate in most of that year's term and all the decisions) and five and a half months to confirm John M. Harlan in 1954-55 (the Senate's most serious failure to date; he only participated in four votes that year). The current McConnell plan, to leave the Court incomplete for the better part of two terms, from February 2016 to January 2017 (at the earliest, and it could take a lot longer if there's a new Democratic president with a Republican Senate, as seems the most likely outcome of the November election), hits a level of irresponsibility that the Senate has possibly never before reached.

There is of course some precedent for the House of Representatives to be pretty irresponsible, when they're run by Republicans and let the government close down altogether, in 1995, 1996, and 2013, and I guess Republican senators must think that's OK, because nobody lost an election over it, though the last one took $24 billion out of the economy. But there's a reason, Senator Hatch, why Congress is less popular than Washington political pandits, Nickelback, and root canal surgery, and I believe the public is starting to figure out which party is the problem.

When history's most incompetent Congress sets yet another unprecedented level of irresponsibility by taking a year or more to replace Scalia, that can only help the voters get the point.