As I prepare to pack a small bag over the next 25 hours, probably sleeping during part of that time, I want to emphasize that I prepare. That is, I spend a few days thinking about it before the fact. It’s a thing.
The other night, though, for some reason I was musing on the death of Justice Scalia and the implications, the bomb throwing, the twisted rationale for all sorts of scenarios.
And I’ve heard them all. Not much interested in the politics; that’s the world we live in, and I completely understand anyway. Everybody wants an advantage.
Of course, we have one, and that’s in the Constitution. The President selects Supreme Court nominees. The Senate advises and consents. That’s pretty much it. There’s no timeline. The Senate can wait as long as it can manage to wait. You might not care for that, but thems the rules.
But if you’ve heard all the talk about “80-year tradition” and other fake precedents during an election year, maybe you’re like me. Maybe you wonder what is politics and what is actual history.
First, no one is saying that Pres. Obama can’t nominate someone. A lot are saying he shouldn’t, not in an election year with no incumbent running and a potential nomination that could shift the political balance on the court.
This is unfortunate but also just the truth. Our Congress for at least the past 8 years has essentially been nonfunctional, turning the bulk of government over to the judiciary and the executive branch. Thus the importance.
But back to tradition. I looked this all up, by the way. Curiosity killed a few hours.
There have been 112 Supreme Court justices. That’s roughly one new justice every other year, which seems weird and off, but that figure is heavily weighted toward the beginning of the country. Most of the justices who died in office, for example, passed away in the 19th century.
In fact, out of the 112, approximately two-thirds left their position by retiring. That is, voluntarily. There were a few exceptional cases, but for the vast majority we can assume what seems to be obvious: The President picks the justice, but the justice picks the President. That is, we assume that a justice anticipating retirement can pick when to do so, assuring that a chief executive he or she at least approves of more than another gets to choose his or her replacement.
This was Sandra Day O’Connor’s strategy, apparently, leading to her vote in Bush v. Gore in 2000. Which apparently she regrets. Whatever. Old news.
So throw out the two-thirds who retired, whether or not it occurred in an election year. Let’s focus on the ones who died in office, thus creating an unexpected opening. Occasionally in an election year, and here we are.
Stats. Gotta love them.
The last justice to die in office was William Rehnquist in 2005, during the first year of the second Bush term. Not an issue. Replace a conservative Chief Justice with a much younger conservative Chief Justice. Not unexpected at all.
1954, associate justice Robert Jackson. Second year of Eisenhower’s term. Not an issue, either.
Before that, we dip into the 1940s and then 30s and so on. About 10 died in the 20th century. None, as it turns out, in an election year.
In fact, the last time this happened was in 1892, Joseph Bradley, passing away at approximately the same time in the election cycle, which involved sitting President Benjamin Harrison (like Bradley, a Republican). There were minor squabbles but mostly intraparty. His successor was confirmed.
Here’s what’s weird, though: In January 1893, after Harrison had been defeated by Grover Cleveland, and knowing the Senate would be dominated by Democrats, associate justice Lucius Lamar died. Harrison went ahead and nominated a solid Democrat, whom he liked, and got him approved – being a true lame duck — before Cleveland was inaugurated in March 1893. Harrison, a one-term president, got to name four Supreme Court justices. Remarkable.
Before that, Chief Justice Roger Taney died in 1864, during Lincoln’s second election year. Still, Lincoln nominated Salmon Chase and he was confirmed.
That’s it, then. In 227 years, three SCOTUS justices have died during election years, including Scalia, and it wasn’t an issue, or not until now.
There is no tradition. There is no protocol. Historically speaking, justices die in office a third of the time, and almost none during an election year.
Just politics. In case it comes up. Numbers sometimes help.