When the death of Supreme Court Justice Ruth Bader Ginsburg on Friday presented an opportunity for President Trump to appoint a new justice to the high court, there was some question of how Romney would react. Would he see this as an opportunity to again stick it to Trump, insisting that any nomination be held until after the November election? Two of his colleagues already had, after all. Or would he instead join the majority of his peers in signaling a willingness to move forward with the nomination process, despite the chance that Trump might soon lose his position?
On Tuesday, Romney answered the question: He would support consideration of a nominee even before the election.
This is not terribly surprising, really. Romney is a conservative Republican, and the primary value proposition Trump has offered conservatives is his willingness to appoint conservative judges to the bench. Trump is almost certainly going to nominate someone who has received a stamp of approval from the party’s right wing, and Republican senators will give that person a thumbs-up.
Where Romney’s announcement went sideways was in its refusal to simply state the obvious point above — that he, as a Republican, will support a nominee supported by the Republican establishment. Instead, like Senate Majority Leader Mitch McConnell (R-Ky.) and a slew of other Republican elected officials and allies before him, Romney tried to use historical precedent as a rationale for his support.
“The historical precedent of election year nominations,” a statement from Romney read, “is that the Senate generally does not confirm an opposing party’s nominee but does confirm a nominee of its own.”
Ergo, this is simply the Republican-led Senate taking a position consistent with its 2016 rejection of consideration for a nominee introduced by President Barack Obama.
But it’s a ridiculous argument.
In the two-party era, which essentially began with Abraham Lincoln in 1861, there have been only 13 instances in which a Supreme Court nomination was made in the same year as a presidential election. Three of those occurred after the election itself. The latest any of the others occurred was mid-July.
This is what’s known in statistical parlance as a “small sample size.” A lot of weird patterns can emerge if you do things only a few times. Flip a coin five times in a row, and you’d be surprised if it came up heads each time. But that’s going to happen a lot more than if you get heads each time after flipping it 1,000 times.
Even with that small sample size, though, Romney’s “precedent” requires a “generally,” which is like saying that the Denver Broncos “generally” lose Super Bowls they play in. True, but they’ve also won the Super Bowl three times.
Of the 10 presidential year nominations that occurred before the election itself, eight meet Romney’s same-party standard. On five occasions, Democrats held the White House and the Senate; on three, Republicans did.
April 30, 1888
July 19, 1892
Feb. 19, 1912
Jan. 28, 1916
July 14, 1916
Feb. 15, 1932
Jan. 4, 1940
June 26, 1968
June 26, 1968
March 16, 2016
One important thing to remember here is that the Senate and the White House are usually controlled by the same party. In the 80 Congresses since Lincoln was first elected, the White House and Senate have gone into the congressional period under the control of the same party on 56 occasions, 23 times controlled by Democrats and 33 times by Republicans. This can and has changed, with retirements, resignations and deaths, but the upshot doesn’t change: 70 percent of the time, a nominee to the court would pass from a president of one party to a Senate controlled by the same party.
Romney doesn’t just focus on the “confirm a nominee of its own party,” though. He also highlights that nominees from a president of one party are “generally not confirmed” by a Senate of the other party.
Of the 10 examples listed above, that has happened once: The nomination of Merrick Garland by Barack Obama in 2016. In other words, the example that Romney’s deference to precedent is meant to excuse.
In seven of the 10 examples, the nominees were confirmed, four times without even bothering to vote. The other two examples derive from a weird situation that emerged in 1968 when Lyndon Johnson was president.
Johnson nominated Abe Fortas, a sitting justice (and longtime ally), to become Chief Justice following the announced retirement of Earl Warren. Homer Thornberry was then nominated to fill the seat Fortas would vacate.
Fortas’s nomination, though, hit rocky terrain with accusations of ethical impropriety stemming from speaking fees he had been paid by private businesses. Fortas withdrew his nomination after barely managing to earn majority support on a cloture vote. With his elevation to chief justice blocked, the Thornberry nomination became unnecessary.
All of this happened while Johnson’s party had a near-super majority in the Senate.
In other words, Romney’s insistence that history offers guidance demanding a vote on whomever Trump nominates is ridiculous. History offers little guidance here, as Romney tacitly admits with his inclusion of that subtle “generally” qualifier. Romney is a Republican, and, whatever other complaints he might have with the president, Trump has consistently nominated judges and justices firmly embedded in the Republican establishment.
It’s a historic moment, certainly. Romney should simply embrace that, instead of using history to rationalize what he’s doing.