Merrick Garland Supreme Court nomination
On March 16, 2016, President Barack Obama nominated Merrick Garland for Associate Justice of the Supreme Court of the United States to succeed Antonin Scalia, who had died one month earlier. At the time of his nomination, Garland was the chief judge of the United States Court of Appeals for the District of Columbia Circuit.
This vacancy arose during Obama's final year as president. Hours after Scalia's death was announced, Senate Majority Leader Mitch McConnell said he would consider any appointment by the sitting president to be null and void. He said the next Supreme Court justice should be chosen by the next president—to be elected later that year. Senate Democrats criticized the move as being unprecedented. They argued that there was sufficient time to vote on a nominee before the election.
Scalia's death brought about an unusual, but not unprecedented, situation in which a Democratic president had the opportunity to nominate a Supreme Court justice with the Republican controlled United States Senate. Before 2016, such a situation had last arisen in 1895, when a Republican-led Senate confirmed Democrat Grover Cleveland's nomination of Rufus Wheeler Peckham to the Court in a voice vote; conversely, in 1988 a Democratic-led Senate had confirmed Republican Ronald Reagan's nomination of Anthony Kennedy and in 1991, a Senate held 57–43 by Democrats nevertheless confirmed Justice Clarence Thomas. Political commentators at the time widely recognized Scalia as one of the most conservative members of the Court, and noted that—while many considered Merrick Garland a centrist, and he had been called "essentially the model, neutral judge"—a replacement less conservative than Scalia could have shifted the Court's ideological balance for many years into the future. The confirmation of Garland would have given Democratic appointees a majority on the Supreme Court for the first time since the 1970 confirmation of Harry Blackmun.
The 11 members of the Senate Judiciary Committee's Republican majority refused to conduct the hearings necessary to advance the vote to the Senate at large, and Garland's nomination expired on January 3, 2017, with the end of the 114th Congress, 293 days after it had been submitted to the Senate. This marked the first time since the Civil War that a nominee whose nomination had not been withdrawn had failed to receive consideration for an open seat on the Court. Obama's successor, Donald Trump, nominated Judge Neil Gorsuch to fill the vacancy on January 31, 2017, soon after taking office.
Background
Death of Antonin Scalia
On February 13, 2016, Associate Justice Antonin Scalia died unexpectedly while at the Cibolo Creek Ranch in Shafter, Texas. He was the second of three Supreme Court justices to die in office during the 21st century: following Chief Justice William Rehnquist in 2005; and followed by Associate Justice Ruth Bader Ginsburg in 2020. Before Rehnquist, the last incumbent justice to die was Robert H. Jackson in 1954.Scalia had been appointed associate justice by President Ronald Reagan in September 1986 to fill the vacancy caused by the elevation of William Rehnquist to chief justice, and was unanimously confirmed by the Senate. He went on to become a part of the court's conservative bloc, often supporting originalist and textualist positions on the interpretation of the Constitution.
The vacancy on the Court created by Scalia's death came during a U.S. presidential election year, the seventh time since 1900 that this has happened. Article II, Section 2, Clause 2 of the United States Constitution grants plenary power to the president to nominate, and with the advice and consent of the Senate, appoint justices to the Supreme Court. At the time of Scalia's death, the incumbent president was Barack Obama, a member of the Democratic Party, while the Republican Party held a 54–46 seat majority in the Senate. Because of the ideological composition of the Court at the time of Scalia's death, and the belief that President Obama could replace Scalia with a much more liberal successor, some concluded that an Obama appointee could potentially swing the Court in a liberal direction for many years to come, with potentially far-reaching political consequences.
Biden rule debate
Scalia's election-year death triggered a protracted political battle that did not end until 2017 after a new president had been inaugurated. The Senate's Republican leadership was quick to assert that the vacancy should not be filled until after the 2016 presidential election. They cited a June 1992 speech by then-senator Joe Biden, in which Biden argued that President Bush should wait until after the election to appoint a replacement if a Supreme Court seat became vacant during the summer or should appoint a moderate acceptable to the then-Democratic Senate, as a precedent. Republicans later began to refer to this idea as the "Biden rule". Biden responded that his position was and remained that the president and Congress should "work together to overcome partisan differences" regarding judicial nominations.The "Biden rule" has never been a formal rule of the Senate. PolitiFact noted that Biden's speech was later in the election year than when the GOP blocked Garland, there was no Supreme Court vacancy, there was no nominee under consideration, the Democratic-led Senate never adopted this as a rule, and that Biden did not object to Bush nominating judicial nominees after Election Day.
Democrats also countered that the U.S. Constitution obliged the president to nominate and obliged the Senate to give its advice and consent in a timely manner. Republicans argued in response that the Senate was fulfilling its obligation of advice and consent by saying that the next president should make the appointment. There were, however, 11 months left to President Obama's term at the time of Scalia's death, and the Democrats argued that no precedent existed for such a lengthy delay and that previous presidents had nominated individuals in election years. Democrats also argued that even if such a precedent existed, President Obama's term had sufficient time remaining that such a precedent would not apply. The precedent, known as the Thurmond rule, dated back to President Lyndon B. Johnson's 1968 nomination of Abe Fortas to become chief justice, but had since been inconsistently applied.
Republicans cited comments previously made by Harry Reid in support of their stance that there was no requirement to hold a vote. In 2005, Reid had stated that "Nowhere in does it say the Senate has a duty to give Presidential nominees a vote. It says appointments shall be made with the advice and consent of the Senate. That is very different than saying every nominee receives a vote".
Republicans also cited the "Schumer standard", which was a comment made previously by Chuck Schumer, in support of their position. In July 2007, as Senate majority leader, Schumer had stated that the Senate should not confirm a further Bush nominee to the Supreme Court, except in "extraordinary circumstances". In response, Schumer stated that his comment was intended only to apply to nominees "out of the mainstream" rather than being a complete refusal.
On February 23, the 11 Republican members of the Senate Judiciary Committee signed a letter to Senate majority leader Mitch McConnell stating their unprecedented intention to withhold consent on any nominee made by President Obama, and that no hearings would occur until after January 20, 2017, when the next president took office. This position subsequently became known as the "McConnell rule" though also not a formal rule of the Senate. That August, McConnell, who played an instrumental role in keeping Merrick Garland from filling Scalia's vacant seat, declared to a crowd in Kentucky, "One of my proudest moments was when I looked at Barack Obama in the eye and I said, 'Mr. President, you will not fill the Supreme Court vacancy."
McConnell later called the question of whether the rule should become Senate policy "absurd", stating that "neither side, had the shoe been on the other foot, would have filled ".
Scholars and lawyers urging Senate to consider a nominee
On February 24, 2016, a group of progressive-leaning U.S. constitutional-law scholars sent an open letter to President Obama and the U.S. Senate urging the president to nominate a candidate to fill the vacancy and the Senate to hold hearings and vote on the nominee. The letter, which was organized by the progressive American Constitution Society, stated that it would be "unprecedented" for the Senate to fail to consider a Supreme Court nominee, and "would leave a vacancy that would undermine the ability of the Supreme Court to carry out its constitutional duties." The signatories wrote that "the Senate's constitutional duty to 'advise and consent'—the process that has come to include hearings, committee votes, and floor votes—has no exception for election years. In fact, over the course of American history, there have been 24 instances in which presidents in the last year of a term have nominated individuals for the Supreme Court and the Senate confirmed 21 of these nominees." Among the 33 professors signing the letter were Dean Erwin Chemerinsky of the University of California, Irvine School of Law; Adam Winkler of the UCLA School of Law; Kermit Roosevelt III of the University of Pennsylvania School of Law, and Gene Nichol of the University of North Carolina School of Law.In a letter sent to President Obama on March 3, 2016, a different group of predominantly progressive scholars of American history, politics, and the law wrote to President Obama to "express our dismay at the unprecedented breach of norms by the Senate majority in refusing to consider a nomination for the Supreme Court made by a president with eleven months to serve in the position." The scholars wrote:
It is technically in the power of the Senate to engage in aggressive denial on presidential nominations. But we believe that the Framers' construction of the process of nominations and confirmation to federal courts, including the Senate's power of "advice and consent," does not anticipate or countenance an obdurate refusal by the body to acknowledge or consider a president's nominee, especially to the highest court in the land. The refusal to hold hearings and deliberate on a nominee at this level is truly unprecedented and, in our view, dangerous...
The Constitution gives the Senate every right to deny confirmation to a presidential nomination. But denial should come after the Senate deliberates over the nomination, which in contemporary times includes hearings in the Judiciary Committee, and full debate and votes on the Senate floor. Anything less than that, in our view, is a serious and, indeed, unprecedented breach of the Senate's best practices and noblest traditions for much of our nation's history.
Signatories to this letter included, among others, Thomas E. Mann, senior fellow at the Brookings Institution; Norman J. Ornstein, resident scholar at the American Enterprise Institute; presidential historian Doris Kearns Goodwin; Pamela S. Karlan of Stanford Law School; Yale Law School professor Harold Hongju Koh; Geoffrey R. Stone of the University of Chicago Law School; and historian James M. McPherson of Princeton University.
On March 7, 2016, a group of 356 law professors and other legal scholars released a letter to the Senate leadership of both parties urging them "to fulfill your constitutional duty to give President Obama's Supreme Court nominee a prompt and fair hearing and a timely vote." The letter writers argued that Senate Republicans' announcement that they would refuse to consider any Obama nominee was a "preemptive abdication of duty" that "is contrary to the process the framers envisioned in Article II, and threatens to diminish the integrity of our democratic institutions and the functioning of our constitutional government." Among the signatories to this letter were prominent law professors Charles Ogletree, Kenji Yoshino, and Laurence Tribe.
On March 9, 2016, in a letter to Obama and Senate leadership, a group of almost 250 prominent corporate lawyers urged the Senate to hold hearings on the president's nominee. The letter stated that "When a vacancy on the court arises, the Constitution is clear... Article II, Section 2 states that the President 'shall nominate, and by and with the advice and consent of the Senate, shall appoint... judges of the Supreme Court'... Though the Senate may ultimately choose not to consent to the president's nominee, it would be unprecedented for the Senate to refuse to perform its 'advice and consent' role in this context. Not only does the Constitution direct the sitting president to nominate an individual to fill a vacancy on the court no matter whether it is an election year, nearly one third of all presidents have nominated a justice in an election year who was eventually confirmed." The letter, organized by the Lawyers' Committee for Civil Rights Under Law, also expressed concern about the "profound effect" of an under-staffed Court on the national economy, particularly in close cases. Signatories to the letter came from a number of national law firms, as well as counsel for Google Inc.
On March 10, 2016, the Democratic attorneys general of 19 states, Puerto Rico, and the District of Columbia released a letter to Obama and Senate leadership in both parties calling for prompt Senate action on the president's nominee. The letter stated that "the states and territories have a unique and pressing interest in a full and functioning Supreme Court" and that refusal to consider a nominee would "undermine the rule of law and ultimately impair the functioning of state governments."
In March 2016, former Utah governor Jon Huntsman Jr., a Republican, and former Connecticut U.S. senator Joseph Lieberman, an independent, both co-chairs of the problem-solving group No Labels, wrote that "there is no modern precedent for the blockade that Senate Republicans have put in place. Even highly-contentious nomination battles in the past, including those over Robert Bork and Justice Clarence Thomas, followed the normal process of hearings and an up-or-down vote. Leaving the current blockade in place could leave a seat on the Court vacant for the remainder of this term and perhaps the next as well, which could leave major cases in limbo until 2018. That is simply not acceptable. We cannot let today's crisis of leadership turn into a full-blown constitutional crisis."
That same month, John Joseph Gibbons and Patricia Wald, the former chief judges of the Third Circuit and D.C. Circuit, respectively, warned that the Senate's refusal to act on a Supreme Court nomination "would set a dangerous precedent, and invite attempts to extend it to other situations where the Executive and the Legislative branches are in political conflict with one another." Gibbons was appointed by a Republican president, while Wald was appointed by a Democratic president.
Law professors Robin Bradley Kar and Jason Mazzone, in a May 2016 study published in the NYU Law Review Online, called the situation "unprecedented," noting that the Senate had never before transferred a president's appointment power in comparable circumstances to an unknown successor.