“That’s their job”

September 25, 2020

“That’s their job,” Supreme Court Justice Ruth Bader Ginsburg responded when asked in 2016 if the Senate had an obligation to act on President Barack Obama’s nomination of U.S. Circuit Court of Appeals Judge Merrick Garland to the Supreme Court.

“There’s nothing in the Constitution that says the president stops being president in his last year,” Ginsburg added.

Justice Ginsburg was right in 2016, and as we grieve her passing last week, we must acknowledge that she is still right today.

In 2012, the American people reelected Democrat Obama for another four-year term as president. In 2014, the American people elected a Republican majority in the Senate. And so, when Justice Antonin Scalia died in February 2016, the relevant institutions were split between the parties.

President Obama exercised his constitutional authority and nominated liberal Judge Garland to replace Scalia. The Senate exercised its constitutional authority and refused to confirm Garland.

This is the constitutional process and the historical norm. There has been a Supreme Court vacancy arising in an election years 29 times in American history. In 10 of those cases the presidency was held by one party and the Senate was held by a different party. Nine of those 10 nominees were rejected by the Senate, just like Garland was rejected.

On the other hand, there have been 19 times when a Supreme Court seat became vacant in an election year where both the presidency and the Senate were controlled by the same party. Only one nominee, Abe Fortas, was rejected.

Confirming Supreme Court justices when both parties control the White House and Senate in an election year is perfectly normal. Indeed, it may be the most normal thing Washington does in this most unusual year.