RBG Aftermath – SCOTUS Part 2 – Precedent?

September 24, 2020

Is there election year precedent for nominating and confirming justices?

Having built my career around data analysis, I care about what generalizations can be drawn from data sets, and I can’t be convinced by any impassioned argument that isn’t backed up by readily-available data. Data analysis indiscriminately separates the outliers from the norms. It’s not that I don’t care about outliers, there are often important and emotional issues going on in outlier cases that need to be addressed in some way, but you can’t dictate policies and procedures to accommodate for all outliers and still have a good solution.

With that in mind, I started my SCOTUS data project from this Senate site. I learned what I could from what was presented, read through the circumstances around each “unusual” nomination (anything other than a Confirmed nominee), dumped the info into a spreadsheet, added in several more relevant data points, and worked my way into the analysis. I was curious about the details of each nomination, whether or not they were in an election year, whether or not the President’s party matched the Senate majority party, and a whole host of other things that presented themselves from the data. I learned that in the SCOTUS history, there have only been 143 individuals ever nominated (in 163 separate nominations…some people were nominated more than once for various reason, including a move from Associate Justice to Chief Justice as well as various other postponements and withdrawn nominations where the same individual was later re-nominated), and 114 ever confirmed to the high court. Only ONE HUNDRED FOURTEEN people, including the initial court nominated by George Washington in 1789.

Of 143 people nominated to the Supreme Court, 114 of them (80%) were Confirmed.

Of the 29 nominees who were never confirmed, 10 were Rejected by Senate vote, 8 had their nomination withdrawn, 6 never had any Senate action taken, and 5 declined the nomination.

For those who were rejected, 7 were rejected in 1930 or earlier and by their same party (e.g. a Republican-majority Senate rejected the nominee of a Republican President). Of the 3 rejected in more modern history (1987, 1970, 1969), all three were Republican Presidential nominees who were rejected by a Democrat-majority Senate. So if there is any clear partisanship in appointing a Justice, the Democrats have had no qualms about wielding their power over the confirmation process in the somewhat-recent past. (I’ve included a Facebook post I made detailing out all of the specifics of those Rejections, if you’re interested in such things).

By focusing on the “hypocrisy” of Mitch McConnell’s Senate majority (due to the 2016 block of Obama nominee Garland), Democrats conveniently ignore their own history of partisan rejection of nominees, which not only includes the assault against Reagan’s 1987 nominee Robert Bork who never made it to the court, but was disgustingly and mercilessly unleashed on Trump nominee Brett Kavanaugh in 2018. Kavanaugh was narrowly confirmed (50-48) along a very-nearly party line vote, but it was the unprecedented assault on his character based on unsubstantiated and salacious claims and outright lies from Democrats that dominated the news cycle and reminds Republicans that any opportunities to confirm Justices must be acted upon swiftly and without deference to the virtue-signaling victimhood claims of the Democrats. The next most narrowly confirmed nomination prior to Kavanaugh was in 1991, when Bush nominee Clarence Thomas was confirmed 52-48 by a Democrat-majority Senate. In fact, the vast majority of party-line confirmation votes in the past 33 years have been by Democrat senators.

I suppose my point in all of this is that the Democrats’ current argument — that precedent dictates that the next Presidential election should be allowed to pass before a replacement justice is confirmed — is not only completely invalid; but it’s also partisan, hypocritical, and should be utterly rejected by anyone interested in truth. One circumstance that they didn’t like in 2016 does not create a precedent, nor does it undo their own party’s prior partisan attacks on the confirmation process. The only precedents I can find in the data are:

• the vast majority of nominations are confirmed
• whoever controls the Senate ultimately determines the confirmation process timing
• Democrats are more likely than Republicans to vote against an opposite-party nominee

To think that any Senate majority would ever pass up an opportunity to confirm a Supreme Court justice that leans in their direction when they have the Constitutional authority and votes to do so, is a partisan pipe dream. The hyperbole, objections, and claims that get hurled around in support of this pipe dream are simply emotional tantrums that can’t be taken seriously.

Trump plans to announce his nominee this Saturday, 9/26/2020, and I welcome it. I couldn’t state what conservatives have to look forward to better than Hugh Hewitt did on his show this morning:

“This is the year in which originalists finally get to 6. This is the year we have been waiting for since 1987, since the ambush of Judge Bork, since the closing of the American mind. We have been lied to and taking it on the chin for 33 years. We’ve watched again and again and again the Constitution be distorted and the rule of law broken. The Warren court did great damage to the Constitution, the Burger & Rehnquist courts stopped the damage, the Roberts court is slowly repairing some of the holes in the boat and, I think with a 6th justice, will greatly repair the Constitution and reestablish people’s confidence in the rule of law.”