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Tony Perkins / Sep. 23, 2020

Filling the SCOTUS Vacancy Now: Historical Precedent Demands It

Filling the Supreme Court vacancy left by the passing of Justice Ruth Bader Ginsburg before the 2020 election aligns not just with the Constitution but with historical precedent.

Filling the Supreme Court vacancy left by the passing of Justice Ruth Bader Ginsburg before the 2020 election aligns not just with the Constitution but with historical precedent. As National Review columnist Dan McLaughlin explained Monday on Washington Watch, there has been a vacancy on the Supreme Court either during an election year or prior to the start of a new administration 29 times in U.S. history, and in almost all those cases, the sitting president has made a nomination. These presidents include George Washington, John Adams, Thomas Jefferson, Abraham Lincoln, Franklin Roosevelt, and most recently, Barack Obama.

The decision to confirm a Supreme Court nominee, of course, lies with the Senate. Historically, as McLaughlin explained, it is when the Senate and presidency are of the same political party that the nominee is confirmed. It is for this reason that President Obama was unable to get his nomination through prior to the 2016 election when the death of Justice Antonin Scalia left a vacancy on the Supreme Court.

“If the president’s party controls the Senate, the president gets his way 17 out of 19 times,” McLaughlin said. “Whereas on the 10 occasions when the opposing party controlled the Senate, only once out of 10 times did the president get his nomination through.”

So, contrary to what members of the Democratic Party might say, for the current Republicans in power not to fill this vacancy would be, as McLaughlin puts it, “a break with all of American history.”

For the Republicans to fail to fill the vacancy now would also be a slap in the face to many conservative voters who show up on Election Day in large part due to their concerns about the Supreme Court and other lower courts. Many social issues are decided by these courts, and conservatives have been hoping to overturn such decisions like Roe. v. Wade for decades now.

McLaughlin likened the situation to a football team on offense which decided at the 10-yard line, ready to score, that they were actually going to stop and wait until the next quarter.

“That would be insane. The fans would go crazy,” McLaughlin said.

Democrats have threatened to “pack the courts” with extra justices if the Republicans go through with a nomination and confirmation prior to the election. Senator Josh Hawley (R-Mo.) warned Republicans to be wary of this when discussing the vacancy on the Supreme Court Monday morning on Fox & Friends.

“They lost the election in 2016, they lost the White House,” Hawley said. “So, listen, if they win back those things, they’ll be able to confirm and nominate their own justices in the future, but to say because they lost elections that now they will break all of our constitutional norms and standards, they’ll pack courts, they’ll conduct impeachment hearings to stop a president from carrying forward his constitutionally authorized privileges and responsibilities — that’s insane.”

McLaughlin acknowledged on Washington Watch that nominating and confirming a judge will give Democrats “a greater incentive to do constitutional mischief.” However, he also reminded listeners that President Franklin Roosevelt tried to pack the courts in 1937, and even with a commanding majority in the Senate, he failed to do so.

“The voters rebelled against it, the newspapers rebelled against it, and even many Democrats rebelled against it,” McLaughlin said. So, even if the Democrats do try such a strategy, McLaughlin believes it is “a fight that Republicans may be able to win, even if the Democrats do get that power.”

Originally published here.


This is a publication of the Family Research Council. Mr. Perkins is president of FRC.

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