There does not appear to be an established procedure for handling vacancies that arise just months before an election. As a result, partisans will be free to offer interpretations of the court's history to buttress their positions on Obama's eventual nominee.
Recent election-year confirmations
Kennedy's 1988 confirmation isn't a perfect precedent. As Ed Whelan, president of the conservative Ethics and Public Policy Center, argues, that seat on the court had been vacated much earlier — in the summer of 1987. His nomination was delayed into President Ronald Reagan's last year in office only because Reagan had to withdraw the nomination of Robert Bork. Rejecting Kennedy, and denying Reagan the chance to fill the vacancy before the end of his term, would have left the Supreme Court without a ninth justice for a year and a half.
In 1956, Justice Sherman Minton resigned just weeks before the end of President Eisenhower's first term. Eisenhower appointed Justice William Brennan Jr. while the Senate was in recess, and when the Senate convened again in 1957 — after Eisenhower's reelection — Brennan was confirmed.
Apparently, the only recent case comparable to the vacancy created by Scalia's death arose in 1968 when Chief Justice Earl Warren told President Lyndon Johnson he wished to retire during that election year. Johnson nominated Justice Abe Fortas for a promotion to fill Warren's seat, but Fortas's nomination met with a filibuster in the Senate. Warren remained on the court.
Some senators might well have considered the pending election in voting against Fortas. Yet the nomination had other problems, too. Senators questioned whether Fortas's personal friendship with Johnson created a conflict of interest. He had also received payment for delivering a series of lectures at a university while an associate justice, according to a report from the Congressional Research Service. Other lawmakers were generally frustrated with the direction of the liberal Warren court.
In general, of course, the president's nominees are confirmed. According to the Congressional Research Service, the Senate has only rejected 36 nominations to the court out of a total of 160 since 1789. That total includes Obama's nominees — Justice Sonia Sotomayor and Justice Elena Kagan, who were both confirmed.
The Constitution's original meaning
Sen. Charles Grassley (R-Iowa), the chairman of the Judiciary Committee, released a statement Saturday saying, "It's been standard practice over the last 80 years to not confirm Supreme Court nominees during a presidential election year."
He also praised Scalia for "his originalist interpretation of the Constitution." In the interest of fidelity to the original meaning of the country's founding document, it's worth asking how the framers would have viewed a vacancy in the same year as a presidential election.
The nation's early years provide an intriguing precedent in the person of Justice Alfred Moore. In a little over four years on the court, Moore authored just a single opinion, and ill health forced him to resign on Jan. 26, 1804. The Senate promptly confirmed a replacement, despite the fact that a presidential election was scheduled for that November.
Moore's resignation, however, was decades before anything resembling a modern presidential campaign. What Americans today would recognize as political parties were only just beginning to coalesce. Consequently, neither the Constitution's meaning as originally interpreted nor recent history provides an unambiguous guide for senators considering a potential nomination in Obama's last year in the Oval Office.
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