UIPDATED 8:28 p.m.  The Senate majority leader, Mitch McConnell of Kentucky, immediately made clear that the Senate GOP leadership will resist any nominee to succeed Justice Scalia.  He counseled waiting until there is a new president in office.


Charles Grassley, the Iowa Republican who chairs the Senate Judiciary Committee, said Saturday night that the Senate should not act on any new Supreme Court Justice’s nomination until after the November presidential election.  Although the Republican leadership of the Senate presumably could overrule Grassley on the point, there will be heavy political pressure on those leaders to leave the nomination to President Obama’s successor.

Here is the key part of the chairman’s announcement: “The fact of the matter is that it’s been standard practice over the last nearly 80 years that Supreme Court nominees are not nominated and confirmed during a presidential election year.  Given the huge divide in the country, and the fact that this President, above all others, has made no bones about his goal to use the courts to circumvent Congress and push through his own agenda, it only makes sense that we defer to the American people who will elect a new president to select the next Supreme Court Justice.”

It seems almost a certainty that there will be a fight in the Senate on how or whether to proceed.   The Democratic leader, Senator Harry Reid of Nevada, issued a statement with this argument;

“The President can and should send the Senate a nominee right away.  With so many important issues pending before the Supreme Court. the Senate has a responsibility to fill vacancies as soon as possible.  It would be unprecedented in recent history for the Supreme Court to go a year with a vacant seat.  Failing to fill this vacancy would be a shameful abdication of one of the Senate’s most essential constitutional responsibilities.”

The dueling statements by two key Senate figures immediately reflected the coming battle over the succession question among activist groups on both ends of the political spectrum.   These are organizations that, over the years, have gained major influence on the entire issue of Senate review of judicial nominations. Members of the Judiciary Committee themselves have come to rely heavily on the lobbying efforts of these outside groups.

In early statements after the news of Justice Scalia’s death had crossed the nation’s capital, leaders of conservative activist groups argued that the Scalia seat should be kept open until a new president is in the White House.   Leaders of liberal and progressive groups argued just as strongly that the president should move ahead and work to place a new member on the Court, and do so promptly.

In and out of the Senate, both Republicans and Democrats and their followers will make use of the still-controversial Senate reaction to a Supreme Court nomination in 1968 by President Lyndon Johnson.   Earl Warren, Chief Justice at the time, wanted to retire, but actually wound up serving another year after the Senate refused to approve Johnson’s nominee to the chief’s: a sitting Justice, Abe Fortas.

The political and legislative maneuvering over the Fortas nomination began as soon as Johnson chose Fortas on June 26, 1968.  It ended on October 1, a month before the election that year   The nomination never came to a final vote, largely because of the opposition of Senate Republicans.   Senators at the time have debated whether the nomination failed because of a GOP filibuster, although historians tend to believe that it amounted to that at the time.

Of course, Richard Nixon won the presidency that year, and the end of the Fortas nomination cleared the way for the choice of Warren Burger to become Chief Justice.

The Senate was generally considered to be less polarized along partisan lines then than it is now.

There is a key difference between the situations surrounding the Court then and now: in 1968, the fight began after the Supreme Court had recesses for the summer, so no cases were immediately affected.  Today, the Court has at least four more months remaining in the Term. with most of the really controversial and high-stakes decisions still to come.

Whatever unfolds from here on, the Supreme Court will be a dominant topic of political conversation and lobbying warfare.

Posted in Featured, Justice Scalia passes away

Recommended Citation: Lyle Denniston, Judiciary panel chair: Wait on Court until after election (UPDATED), SCOTUSblog (Feb. 13, 2016, 7:38 PM), http://www.scotusblog.com/2016/02/judiciary-panel-chair-wait-on-court-until-after-election/