![]() ![]() ![]() He sent up a pair of nominees in December, after the election. ![]() John Tyler made nine separate nominations of five different candidates, in one case sending up the same nominee three times. Twenty-two of the 44 men to hold the office faced this situation, and all twenty-two made the decision to send up a nomination, whether or not they had the votes in the Senate.ĭuring the 1844 election, for example, there were two open seats on the Court. (This counts vacancies created by new seats on the Court, but not vacancies for which there was a nomination already pending when the year began, such as happened in 1835––88.) The president made a nomination in all twenty-nine cases. Twenty-nine times in American history there has been an open Supreme Court vacancy in a presidential election year, or in a lame-duck session before the next presidential inauguration. A president can always make a nomination for a Supreme Court vacancy, no matter how late in his term or how many times he has been turned down the only thing in his way is the Senate. Laws that allocate power are paramount, and particularly dangerous to violate, but there is no such law at issue here. There are two types of rules in Washington: laws that allocate power, and norms that reflect how power has traditionally, historically been used. Power, Norms, and Election-Year Nominations Democrats are issuing threats, and some Republicans are already balking. But with the 87-year-old Ginsburg fighting a recurrence of cancer and repeatedly in and out of hospitals, we are starting to see the Washington press corps and senators openly discussing what would happen if she dies or is unable to continue serving on the Court. Neither Ruth Bader Ginsburg nor any of her colleagues intend to go anywhere. There is no chance that the Democrats, in the same position, would ever reciprocate, as their own history illustrates.įor now, all this remains hypothetical. It has never happened once in all of American history. Choosing not to fill a vacancy would be a historically unprecedented act of unilateral disarmament. There is no such law and no such norm those are all on their side. Wade, it would be political suicide for Republicans to refrain from filling a vacancy unless some law or important traditional norm was against them. Given the vital importance of the Court to rank-and-file Republican voters and grassroots activists, particularly in the five-decade-long quest to overturn Roe v. I f a Supreme Court vacancy opens up between now and the end of the year, Republicans should fill it. ![]()
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