Precedent for Blocking Merrick Garland Nomination?

Recently, Dan McLaughlin argued that historical precedent supports the Republican Senate filling the September 2020 Supreme Court vacancy—and blocking the nominee, Merrick Garland, from filling the February 2016 vacancy. My concern is the 2016 vacancy (and I’ll let you draw your own conclusions about 2020)—was it in fact supported by historical precedent? Providing a very helpful spreadsheet, McLaughlin identifies 19 vacancies occurring in an election year when the president and Senate were not from the same party. The above figure highlights the number of days the Senate took to provide “advice and consent.”

As seen, there are only two cases in which a nomination made before the election received no advice and consent prior to the election (as indicated by a black horiontal line crossing the red vertical line). One, of course, was President Obama’s nomination of Merrick Garland on March 16, 237 days before the 2016 election. The other was President Eisenhower’s 1956 nomination of William J. Brennan, Jr.—i.e., Justice Brennan. This latter nomination is not quite comparable to the 2016 case as President Eisenhower made the nomination on October 15, 22 days before the 1956 election, when the Senate had adjourned from July 27 until January 3. Even if the Senate were in session, 22 days is not a lot of time. According to the Congressional Research Service, since 1975 it takes an average of 69.6 days from nomination to final Senate vote. The fastest instances of advice and consent are 19, 33, and 42 days for Justices Stevens, O’Connor, and Ginsburg, respectively.

Another nomination of interest in the figure is that of Samuel Nelson (the green square in the bottom-right corner). President Tyler (thrown out of the Whig party in 1842, also the first unelected President due to his predecessor’s death) had nominated four people to an 1843 vacancy, none successful. He then nominated Nelson only 28 days before president-elect Polk (a Democrat) took office. Surprisingly, the Whig Senate confirmed Nelson (a Democrat) just 18 days before losing their majority to an incoming Democratic Senate. This is confusing history, to me, but the point is that a Senate, not of the same party as the President, confirmed a Supreme Court nomination that would have been moot less than three weeks later—of course, perhaps staving off a Justice even less palatable to the Whigs.

What seems to set the Garland nomination apart is that the Republican majority of the Senate’s Judiciary Committee did not even schedule hearings. In a review of Supreme Court nominations since 1949, the CRS could find no other instance of this behavior by the Judiciary Committee.¹ If they had looked further back in history, however, the Senate records four other instances of such black hole nominations:

• President Tyler nominated John Read, February 7, 1845, 94 days after the election.
• President Fillmore nominated Edward Bradford, August 16, 1852, 78 days before the election.
• President Fillmore nominated William Micou, February 14, 1853, 104 days after the election.
• President Andrew Johnson nominated Henry Stanberry, April 16, 1866, 932 days before the election. Fun fact on this one, Congress went to the trouble of reducing the size of the Supreme Court in order to block the nomination.

In addition, two postponements and a re-nomination later withdrawn operated effectively as the same black hole. This makes eight historical instances in which the Senate avoided the business of providing advice and consent on a Supreme Court nominee, five of which have an identical technical disposition as Merrick Garland’s nomination. While I expected the Garland case to be more unique, one can say that it seems the Senate is not really a place to look for genteel politics. Of course, one could always argue that the post-1866 era exhibits different norms that do in fact make 2016 unique …