Does history suggest that the US President has the moral right to appoint a new Supreme Court Justice in an election year?
First off, let’s not kid ourselves by using the word ‘moral’ in the same sentence as ‘US President’, especially not in 2020. Appointing a Supreme Court justice has always been a plum to be plucked from the eponymous fruit tree by any incumbent of the Oval Office. With a third appointment looming, President Trump is hoping to have enough fruit for a jar of plum jam before the end of this year.
The answer to the question posed above seems to depend on whether a) the President in question is a Republican or a Democrat b) which party controls the Senate, and c) just how much cynicism and utter shamelessness Senate Majority leader Mitch McConnell (R-Ky) can muster. Given that he didn’t even bother to wait until rigor mortis had set in before announcing that the Senate was ready to replace Ruth Bader Ginsburg by Sunday brunch, his lack of self-reflection runs even deeper than any previous diagnosis indicated.
Back in 2016, according to Senator McConnell, it appears to have been morally repugnant to appoint a Democratic nominee, Merrick Garland, as an Associate Justice of the Supreme Court of the United States (SCOTUS – they do love their acronyms!) in March of a Presidential election year – i.e a full eight months before the 8 November polling date. But, in 2020 it seems to be just dandy to start the same process less than eight weeksbefore another Presidential election.
Of course the two situations are entirely different. The truth can be found in the Chinese Zodiac.
2016 was the Year of the Monkey while 2020 is, with a certain poetic inevitability, the Year of the Rat. Everyone knows that in a Year of the Monkey (1932, 1944, 1956, 1968, 1980, 1992, 2004, 2016) it is not permitted, under an obscure amendment to the US Constitution of which only the senior Senator from Kentucky seems to have had sight, for the incumbent President (provided he is a Democrat) to appoint a new Associate Justice to a Supreme Court vacancy. These rules change completely, however, during any given Year of the Rat (1936, 1948, 1960, 1972, 1984, 1996, 2008, 2020). The Founding Fathers knew exactly what they were doing (as with the right to bear arms against pre-school children and the fabulously democratic Electoral College) when they favoured a rodent over a primate in framing this ‘lost’ amendment to the Constitution. It appears to have been re-discovered by the Senate Majority leader hidden underneath the original document in the National Archives where it had been carelessly placed by an absent-minded Alexander Hamilton who was late for a production meeting with Lin Manuel Miranda. Chapeau Senator!
If Mitch has the brass neck to try and push through Trump’s nominee (probably female and due next week) it will mean the 45th President will have manged three picks in a single term. That would be a good strike rate, but not overly impressive if we look at the history of Supreme Court appointments.
Some Presidents got to nominate a hell of a lot of justices. Obviously George Washington is the Olympic gold medallist in this particular discipline because he appointed all the members of the very first Supreme Court (there were six back then). He has a personal best of eleven appointees over eight years. Franklin Roosevelt comes next, largely because he was in office for most of the 20th century. His PB was nine, over almost a dozen years in the White House. He tried really hard to beat Washington’s total though (see below). William Hoard Taft holds the record for a one-term President with six appointees, before becoming Chief Justice himself (he wasn’t one of his own nominees by the way – he was appointed by half-term President Warren Harding in 1921).
If Trump succeeds in appointing a replacement for Ruth Bader Ginsburg and, in the process, changes the political complexion of the Court for a generation, would a newly elected Joe Biden have any possible comeback? Indeed he would. There have been nine SCOTUS justices on the Supreme Court bench since the passing of the Judiciary Act of 1869 – before that the number varied between six and ten. The total is determined, not by the President, the Court itself, or the Constitution, but by Congress. So, nothing like a time-consuming and unwinnable constitutional amendment (requiring the ratification of 38 states) is needed to change the status quo.
In 1937 Franklin D. Roosevelt, frustrated at having many of his New Deal reforms stymied by adverse Supreme Court decisions against the constitutionality of many of his measures proposed to, in effect, ‘pack’ the Supreme court with a majority of his own nominees. He sought to introduce legislation which might have had the effect of increasing the number of justices to fifteen. He wanted the power to appoint a new justice for every incumbent who opted not to retire at the age of seventy. In this particular political sleight of hand he was thwarted by members of his own party and the exclusive (male) club remained nine strong. It has done so to this day.
However, given the ’tradition’ that Senator McConnell established in 2016 and will conveniently ignore in 2020 (I won’t insult your intelligence by mentioning the Jesuitical reasoning by which he has informed his conscience, so that it allows him to flout his own ‘rules’) it should be in order for President Biden and a Democratic Congress to restore some political balance to the SCOTUS by adding one, or even two new, credible, and suitably qualified posteriors to the bench. That would make up for the SCOTUS pick denied President Obama in 2016, and newly elected President Biden (God that sounds soooo good) in 2020.
And in case you are worried about having an even number on the court if he stops at one new appointee, fear not. In the event of a tied decision all cases go into overtime as the concept of a draw is not recognised in any truly American sport. Actually that’s not true, in the event of a tied vote the decision of the lower court being challenged in the high court, is duly confirmed.
So, even if the handful of Republican Senators who have voiced opposition to a promotion to the SCOTUS during an election year are cajoled, bullied or intimidated into resiling from the position held to so fervently by their own Majority leader in 2016, there are historical precedents for the Supreme Court bench to number more than nine Justices and there is no impediment to Congress adopting that course of action in 2021, the Year of the Ox.