Lawyers’ Committee Report Concludes that the Refusal by the Senate Judiciary Committee to Consider a Nominee for the Supreme Court is Historically Unprecedented
WASHINGTON, D.C. – Today, the Lawyers’ Committee for Civil Rights Under Law (Lawyers’ Committee) submitted a letter to Senator Charles Grassley, chairman of the Senate Committee on the Judiciary, in response to the senator’s stated refusal to consider any nominee put forth by President Barack Obama to fill the current vacancy on the Supreme Court of the United States. The letter was accompanied by a report that draws from legal and historical precedents regarding Supreme Court vacancies and concludes that the Senate should carry out its constitutional responsibility, given the critical role of the Supreme Court in our democracy, and that a refusal to consider a nominee under these circumstances is unprecedented.
“The position taken by members of the Senate Judiciary Committee who refuse to consider any nominee put forward by the president is unprecedented and is inconsistent with the roles of the president and the Senate as envisioned by the Framers of the Constitution,” said Kristen Clarke, president and executive director of the Lawyers’ Committee for Civil Rights Under Law. “Their opposition threatens to create legal uncertainty that would be unfair to all Americans, particularly minorities, and would create a dangerous historical precedent.”
The report notes:
- The structure and history of the Constitution, the early writings of the Framers, and subsequent Supreme Court precedent make clear that the president has the primary responsibility and authority for appointing Supreme Court justices.
- The Lawyers’ Committee’s review of the historical record did not reveal a case when any Senate or senator took the position that it would flatly refuse to consider a president’s nomination with ten months in his presidency, even when the Senate was controlled by the opposing party.
- Between 1789 and the death of Justice Scalia, presidents submitted 160 nominations for positions on the Supreme Court. The Senate has given at least committee consideration to all but one of those nominees, unless the nomination was withdrawn by the president. The one exception was William C. Micou, whom President Millard Fillmore appointed in 1853 only one month before the expiration of his term as president.
- The historical record also shows that the Senate has acted on several Supreme Court nominees during a presidential election year, including such prominent justices as John Marshall, Louis Brandeis, and Benjamin Cardozo. Nearly one third of presidents have nominated a justice during a presidential election year who was eventually confirmed.
- Between 1967 and 2006, a median of 69 days elapsed between the date when the Senate received a nominee for the Supreme Court and the date when the Senate took final action on the nominee. If the next justice is not appointed until the next president takes office, the current vacancy will likely last longer than a year and stretch over two terms of the Court. It would be the longest Supreme Court vacancy in the twentieth century other than a single case involving a rejected nominee, which delayed an eventual confirmation.
- A lingering vacancy on the Supreme Court leaves it with only eight justices, creating the possibility of 4-4 tie votes that do not resolve legal disputes or establish binding precedent for the country. This situation does not permit the Court to serve its vital function in our constitutional democracy of protecting the rights of minorities.