With the passing of Ruth Bader Ginsburg the Supreme court is again short a judge during an election year. Many have argued their position to postpone or continue the appointment process based on the precedent. But is there any? We find out.
With the passing of Ruth Bader Ginsburg the Supreme court is again short a judge during an election year. Pundits and politicians have claimed precedent or rules in order to reason their position.
The first such rule is the ‘Biden Rule’. In a June 1992 speech Biden stated then President Bush should wait until after an election if a seat became vacant during the summer months. During the 2015 Merrick Garland nomination Senate Republicans often cited this speech as a rule. This rule had never been cited in conjunction with an action that successfully held up a nomination until 2016.
Another often cited precedent is the historic precedent. Some claim that there is historic precedent that states a successor should be nominated and voted on immediately and without delay, regardless of whether or not it is an election year or not. This was cited by Democrats in 2016 and Republicans now in 2020.
Finally, most recently, all Democrats on the Senate Judiciary Committee sent a letter to the chair stating “There cannot be one set of rules for a Republican President and one set for a Democratic President,” and “considering a nominee before the next inauguration would be wholly inappropriate.” Here they only cited appropriateness and no specific speech, rule or precedence.
We gathered data on every 20th century United States Supreme Court election year nominee, the president, the president’s party and the senate majority party at the time and reviewed for each and the resulting outcome for a consistent pattern.
We found 8 such cases in the 20th century with 4 scenarios and 2 outcomes.
Scenario 1: Presidential and Senate majority are both from the Republican party. In each of these cases a nominee was voted on and passed in an election year before the presidential election. There have been two such instances of 8 in the 20th century.
Scenario 2: Presidential and Senate majority are both from the Democratic party. In each of these cases a nominee was voted on and passed in an election year before the presidential election. There have been three such instance of 8 throughout history.
Scenarios 1 and 2 together combine for 5 such instances out of 8.
Scenario 3: Presidential and Senate majority are both from the different parties (or the Senate was in recess). Results here are mixed; one time the nominee succeeded to the Supreme Court and one time when they did not. There was one instance (Brennan) where the Senate was in recess; the nomination was made before the election but the nominee was not voted on until after the election. There have been three such instances of 8 in the 20th century.
Scenarios 1, 2 and 3 combine for a total of 7 instances out of 8.
Scenario 4: The Senate majority exercises their majority rights and chooses when to engage in the nomination process. This has occurred all 8 of 8 times.
Reviewing the data, one could easily mistake the precedent to be that the process should begin immediately, there is only one instance where this did not happen in 2016 with Senate Republicans breaking the previous precedent and setting a new precedent. The new precedent is one where the Senate majority controls when the process is engaged, now or after the election. Republicans may come to regret changing the precedent in 2016.