David Kopel

Republics are held together by written laws and by unwritten norms. The Roman Republic called its unwritten standards the mos maiorum—"way of the ancestors.” After thriving for centuries, the Roman Republic began to commit suicide around 100 B.C., as demagogues cast aside the mos maiorum and turned politics into tribal warfare.

Similar trends are apparent in the United States today, including on Supreme Court vacancies.

The Constitution’s written law for the Supreme Court is terse. Article III establishes a Supreme Court and specifies certain cases that it must hear. Article II states that the president will “nominate…Judges of the Supreme Court,” subject to “the Advice and Consent of the Senate.” Since 1789, presidents have made nominations and the Senate has granted or withheld consent depending on the politics of the day.

Presidential nominees have won the consent of the Senate 121 times. Thirty-seven nominees have been rejected. Eleven lost in Senate roll call votes — most recently, Reagan’s Robert Bork in 1988, and Nixon’s Clement Haynsworth and Harold Carswell in 1969-70. Presidents withdrew eleven nominees before a vote, including Bush’s Harriet Miers in 2005 and Reagan’s Douglas Ginsburg in 1987. Fifteen nominees languished without Senate action, including Obama’s Merrick Garland in 2016.

Highly-qualified nominees may be rejected purely on ideological grounds — such as Garland, Bork, and Haynsworth.

The Constitution does not specify the size of the Supreme Court. The first U.S. Supreme Court had six justices. It was reduced to five in 1801, quickly raised back to six by a new Congress, then to seven in 1807, to nine in 1837, and 10 in 1863. To prevent President Andrew Johnson from making appointments, the number was reduced to seven in 1866. Finally, in 1869, Congress made it nine again, where it has remained ever since.

President Franklin Roosevelt’s 1937 proposal to add six more Justices was broadly unpopular. It much reduced his political strength from his landslide 1936 election and created an enduring coalition of Republicans and conservative Democrats against him.

Back in the presidential election year of 1888, Democrat Grover Cleveland had appointed and a Republican Senate confirmed Chief Justice Melville Fuller. For the next century, no Supreme Court vacancy would arise in a presidential election year when the president and Senate were of different parties.

The vacancies that did come occurred with presidents and Senate of the same party. Thus the nominations and confirmations of Justices Cardozo in 1932, Brandeis and Clarke in 1916, Pitney in 1912, and Shiras in 1892.

In the century after 1888, the opposite-party situation never arose. But when George H.W. Bush was President, Senate Judiciary Chair Joe Biden declared that the Senate should not confirm a Bush nomination, should a vacancy occur in 1992. Senate Judiciary Chair Charles Schumer declared the same for 2008, when George W. Bush was president. Senate Majority Leader Mitch McConnell followed suit in 2016, when Barack Obama was president.

By longstanding tradition, if there is any potential ethics problem for any nominee, the problem is brought to the Senate committee staff as soon as it is discovered. The staff investigates, and some nominees withdraw before a hearing is held.

That tradition was demolished for Brett Kavanaugh. Christine Blasey Ford communicated her allegations before the Senate Judiciary Committee hearings even began. Rather than sharing the information, Democrats withheld the accusations until after Judiciary hearings were completed, and then leaked them. What followed was the most vicious character assassination ever directed at a Supreme Court nominee. As detailed in a subsequent report by Senate staff, not a shred of evidence supported any accusation.

Then in August 2019, five Democratic senators sent an unprecedented threat letter — in the form of an amicus brief — to the Supreme Court. They warned that if the court ruled against New York City in a gun control case, they would pack the court. Perhaps the threat worked, since the court later voted 6-3 to drop the case.

Whether the pretext is a Second Amendment case, a judicial nomination, or something else, Democrats will attempt to expand and pack the Supreme Court as soon as they have the power to do so.

To uphold tradition and to rebuke the egregious misconduct of Senate Democrats during and after the Kavanaugh nomination, the Senate should have no hesitation in moving forward to consider the Supreme Court nominee who will be announced soon.