Tuesday, February 16, 2016

Some Historical Advice for Senate Republicans

With the death of Supreme Court Associate Justice Antonin Scalia (1936-2016) comes the end of a colorful, controversial, and consequential three decades on the bench. Shockingly, in an election year with a divisive President and recently swept in Republican majority in the U.S. Senate, we find ourselves confronting something "unprecedented" in American history--a lame-duck President making a Supreme Court appointment with a Senate that may very well refuse to even act on the nomination. (Digression: unprecedented things in American history happen all the time, in every realm of society--they are not newsworthy simply for their novelty!) Quickly, the political chattersphere kicked into gear about who would be at fault for this allegedly never before seen example of political hackery and dysfunction.

And yet, the history of the Republic contains at least two far more acrimonious examples of Congressional hatred for an unpopular and divisive President that resulted in delay and "hijinks" for Supreme Court appointments. And I would like to suggest that Senate Republicans follow one of these examples to avoid media bottlenecks over the next year that are likely to play right into the President's hands if he's clever enough (and he certainly is).

As for the really nasty example that Republicans cannot follow even if they wanted to (their majorities aren't big enough), one need only look at the Presidency of Andrew Johnson. Aside from being impeached by the House of Representatives and nearly removed from office by the Senate, Johnson's tenure in office between 1865-1869 is also notable for the fact that the Congress of the United States deliberately went out of its way to reduce the size of the Supreme Court from nine to seven justices so that President Johnson could not appoint anyone. His one nominee, Henry Stanbery, met no action in the Senate because there was no longer a seat in existence for him to take. It should be noted, by the way, that the Senate has done this--take no action at all during a session on a nominee--nine times (there have been 160 nominations, so that is 5.6% of the time).

One more historical delay before getting to the example Senate Republicans may wish to emulate. The last nominees actually made during an election year, Lyndon Johnson's 1968 appointments of Abe Fortas as Chief Justice and Homer Thornberry as Associate Justice were both withdrawn by the President in the face of congressional opposition (Democrats held a 60+ seat Senate majority throughout the session), which does not bode well for election year appointments. This is not due to any real constitutional, or even informal, arrangements, but simply the politics of election years when most of Congress is out of town and jittery about decisions that may have dire consequences in November. Reagan's appointment of Anthony Kennedy, it should be noted, occurred in 1987 and was wrapped up in the first two months of 1988. Reagan, unlike Johnson, was incredibly popular and his Vice-President was about to be swept into office later in the year--different political realities produce different outcomes, who knew!

Finally, the precedent that Senate Republicans should follow. In 1841, after one of the most contested and exciting elections in American history, and barely a month into his Presidency, William Henry Harrison died. His Vice-President, John Tyler (Too), assumed the post with the full backing of the Whig Party that had just elected both men to the top of the Executive Branch. Sadly, for the Whigs, Tyler's Whiggism was of the anti-Andrew Jackson's use of executive power variety and not the Henry Clay "American System" variety. This meant that once the Whigs passed the legislation the voters just sent them to Congress to pass, their Whig President vetoed those laws. Very quickly, Tyler was read out of the Whig Party. An aristocratic Virginian anti-Jacksonian, he found no home with the Democrats either. He was a despised President with no party at all--a rarity in American politics, that only Andrew Johnson resembles in any way.

Now, what does this mean for the Supreme Court? Well, during Tyler's rather miserable time in the Executive Mansion, two Associate Justices died--Smith Thompson (December 1843) and Henry Baldwin (April 1844). Tyler proceeded over the course of 1844--an election year--to submit five different nominees for the two vacancies in nine separate nominations. The Senate was narrowly controlled by the Whigs. First was John Spencer in January 1844, whom the Senate rejected three weeks after his nomination. Next was Reuben Walworth, whom the President withdrew in June after three and half months before the Senate. Then it was Edward King, who found himself postponed. John Spencer and Reuben Walworth were renominated and withdrawn again on the same day in June. In December, after a new President was elected (James K. Polk, Democrat), Tyler renominated King and Walworth, both of whom were withdrawn in February 1845 (Presidents were still sworn in on March 4 in those days) in the face of continued Senate opposition. Then, miraculously, Tyler submitted Samuel Nelson on February 4, 1845 who won unanimous consent from the Senate ten days later. Tyler's final nominee, John Read on February 7, 1845, met no action in the Senate and no vote. Baldwin's seat was not filled until Polk successfully nominated Robert Grier, who was confirmed in August 1846 (more than two years after Baldwin's death!) Why did Nelson make it through? He was an old jurist from New York with a good reputation who avoided the partisan strife of the Second Party System and whose only political service occurred during the good feeling Monroe administration. Which is to say, Nelson was someone everyone respected and could live with--no one held it against him that Tyler had nominated him.

So what lesson do Senate Republicans draw from all this? Obviously, President Obama is not a man without a political party and he has considerably more resources and talent than John Tyler ever did. But, what 1844 proves is that an antagonistic Senate can easily keep Supreme Court seats open simply by considering and rejecting nominees from a President the majority doesn't much care for. There are several useful lessons here for Senate Republicans in 2016:

1) Do not be afraid to reject nominees until you get one you like--the President is more desirous of living on through SCOTUS than you are!
2) Do not be afraid to reject nominees more than once--when he keeps reappointing rejects, he will look as silly as he says you are every time you repeal Obamacare
3) Do not stall on a nominee unless there is only a week or two left in Obama's term and/or the election is already over--the last thing you need is some sympathetic looking character constantly before the nation as they wait for consideration and are ignored (the American people can live with watching someone lose, but not with their being unable to have a shot--also, the media of 1844 hated John Tyler, whereas the media of 2016 is likely to disdain Senate Republicans)

Of course, if Hillary Clinton or Bernie Sanders wins the election in November (and Democrats retake the Senate), those Obama appointees might start to look good compared to what is about to come. In which case, hopefully there is a modern day Samuel Nelson waiting for action in the Senate!

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