Article from For Liberty by Norm Leahy.
President Donald Trump said he is likely to nominate a new Supreme Court justice Friday or Saturday, in the hopes the Senate will approve that nominee as soon as possible.
But what does “soon” mean? Democrats say they want the winner of the Nov. 3 presidential election to pick the nominee to replace Ruth Bader Ginsburg on the court. Most Republicans are likely to support an effort to confirm a new justice before the election. But that won’t be easy. According to the Wall Street Journal:
Republicans acknowledged that it might be difficult to confirm the new justice before Election Day on Nov. 3, given the short time frame, but said they supported the president moving forward. For Supreme Court nominees since 1975, the median amount of time from nomination until a floor vote was 69 days, according to a report by the Congressional Research Service.
There’s a possibility a justice wouldn’t be voted on until after the election – in the lame-duck congressional session. Democrats certainly won’t like that. But there’s ample precedent for lame ducks – be they members of Congress, or presidents – for making and approving court nominees. Consider the case of John Adams and John Marshall. Adams appointed Marshall after losing the presidential election to Thomas Jefferson, who was in the midst of a fierce battle with his ticket-mate, Aaron Burr, over the electoral vote:
…on January 19, the Congress had Secretary of the Navy Benjamin Stoddert, one of the few Federalists who was still speaking to Adams, remind him that “as the bill proposes a reduction of the Judges to five,” he ought to act before the bill came up for consideration.
Although the record is inexact about what happened next, the available sources indicate that something like the following transpired. Later that day, as luck would have it, the secretary of state stopped by the President’s House to discuss some official business. Some time after Marshall’s arrival, the president asked him what to do about the court. “Who shall I nominate now?” Marshall records Adams asking him. The secretary of state had no response. Then in a characteristic flash of impetuousness, Adams wheeled about and said, “I believe I must nominate you.” The president’s decision struck Marshall, and he “bowed in silence.”
The Senate, still under Federalist control, approved the nomination after a week of debate (and trying to change the president’s mind). History has shown that lame-duck nomination was one of the most consequential in American history.
Image Credit: Joe Ravi [CC BY-SA 3.0 (https://creativecommons.org/licenses/by-sa/3.0)], via Wikimedia Commons
