There is a vacancy on the United States Supreme Court, and Republicans do not want the president to use his constitutional authority to fill it. Why? Well, the real reason is obvious. But their stated reason is “because it’s an election year.” And they are pulling out all the stops to once again claim that if President Obama moves to fill the seat left open by the death of Antonin Scalia, he will be doing something unprecedented and “un-American.” They are particularly afraid that the president will fill the vacancy with a “recess appointment,” which he is allowed to do by the constitution. That procedure has been used a number of times by presidents in the past, but it is still somewhat controversial.
The right-wing site American Thinker has seized on an editorial written by an anti-Obama law professor, David Bernstein, to claim that in the past, Democrats opposed “election year appointments” to the Supreme Court. American Thinker hyped Bernstein’s op-ed with this completely false headline: “Blog: Dems in Senate passed a resolution in 1960 against election-year Supreme Court appointments.”
Thomas Lifson, who penned the story that accompanies the headline, says that in 1960 “The GOP opposed this, of course. Hypocrisy goes two ways. But the majority won. As it should this time.” But Lifson is either a little dull minded himself, or he counts on his audience to be. A “sense of the Senate” resolution such as the one in question has no force of law behind it. Zero. None. Zip. So it really doesn’t matter that the Democrats said that in 1960, and it doesn’t matter that Republicans are saying it now.
Here is Bernstein’s editorial, which appeared in the February 13 Washington Post under the headline “Flashback: Senate Democrats in 1960 pass resolution against election-year Supreme Court recess appointments,” in it’s entirety:
Thanks to a VC commenter, I discovered that in August 1960, the Democrat-controlled Senate passed a resolution, S.RES. 334, ‘Expressing the sense of the Senate that the president should not make recess appointments to the Supreme Court, except to prevent or end a breakdown in the administration of the Court’s business.’ Each of President Eisenhower’s SCOTUS appointments had initially been a recess appointment who was later confirmed by the Senate, and the Democrats were apparently concerned that Ike would try to fill any last-minute vacancy that might arise with a recess appointment. Not surprisingly, the Republicans objected, insisting that the Court should have a full complement of Justices at all times. Of course, the partisan arguments will be exactly the opposite this time.
Take note of the one key word that is missing in the American Thinker’s version of that headline: “recess.” So their whole argument that Democrats in 1960 passed a resolution objecting to any SCOTUS appointments in an election year is a “pants on fire” level lie. It is even debunked by the op-ed Lifson refers his readers to. And there’s the fact that current Justice Anthony Kennedy was approved by the Senate in 1988, the last year of Ronald Reagan’s term. But apparently there was no complaint from Democrats over that, since absolutely nobody is mentioning it. Instead, Bernstein and Lifson have to go back to 1960 to stir up this non-issue.
Bernstein, a George Mason University law professor, whose main claim to fame is apparently his book, “Lawless: The Obama Administration’s Unprecedented Assault on the Constitution and the Rule of Law,” gets his basic facts correct. But in true conservative fashion, he doesn’t fill in all the details. Here are those missing details.
President Eisenhower filled three Supreme Court vacancies by using the power of recess appointments. All three were later confirmed by the Senate. But the last of the three, Justice William Brennan, was appointed to the court just one month prior to the 1956 presidential election. This willingness by Eisenhower to use the power of recess appointments led the Senate Judiciary Committee to recommend that future recess appointments be done only under unusual circumstances. That recommendation was affirmed by the entire Senate in the August 1960 resolution. So was the issue the recess appointment itself, or the fact that Ike had chosen to use that route for his SCOTUS nominees on three different occasions?
It could be credibly argued that the current situation is one of those extraordinary circumstances that Democrats were concerned with in 1960. Republicans have blocked or attempted to block everything. President Obama has tried to do, from momentous legislation such as the Affordable Care Act down to much more mundane issues like appointments to executive branch posts. This is a bald-faced play by Republicans to try and keep the balance of power on the Supreme Court tilted in the conservative direction. The constitution that they claim to love so much is clear: President Obama holds the right to appoint a replacement for Justice Scalia, and he maintains that right until about noon on January 20, 2017.