22. That’s the number of Supreme Court Justices nominated in an election year. Following the passing of Justice Ruth Bader Ginsburg, the American public is thrown into the same debate we had in 2016. Senate Minority Leader, Chuck Schumer, along with many of his Democratic colleagues immediately came out and condemned Senator McConnell for moving forward with the nomination and the confirmation process. Should Senate Republicans fill the seat or wait until the results of the election? The framing of this debate is in relation to norms and concludes with “Should the Republicans confirm President Trump’s appointment, yes or no?” However, the actual question we should answer is whether the Executive branch and the Senate can, not should, nominate and possibly appoint a justice to the vacant seat? The answer is yes.
The text of the Constitution empowers the President to nominate an individual to the Supreme Court. As a check and balance mechanism, the Senate has the right to confirm presidential appointments to the Supreme Court under the right of advice and consent, enshrined in Article II, section 2 of the Constitution. As difficult as it may be for some, when the voters consent to elect their representatives we should let the representatives do their job. The role of a functioning legislature means its imperative for the Executive and Legislative branch to fill the role of the Judicial branch, even during an election year.
Out of the 22 nominations ahead of the election year, 11 have been confirmed bringing the confirmation rate to 50%. This data is largely skewed in 1840 when President Tyler nominated 3 individuals, 7 times, and none were confirmed. When you remove those names, the confirmation rate jumps to 73%. There are also 13 nominations during a lame duck session, and 7 confirmations. That’s a 54% confirmation rate. This is history informing us that the President and the Senate can fill the SCOTUS seat during an election year.
Partisan politics poison everything we see, hear and do today, and the vacated SCOTUS seat is not exempt from it. The role of the SCOTUS has changed over the decade. The celebritization of the SCOTUS seat and the constant partisan media narrative to whip up animosity has increased the temperature. The noise we’ll see in the next few weeks will enrage many on both sides of the isle. However, if we are to look at history and the Constitutional right of our representative body of government and look at this process with rationality, we should be able to remove the noise and accept that our current government can nominate a new Justice to the vacated seat.
R.I.P Justice Ginsburg.