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Democrats and Republicans are both making misleading arguments about Justice Scalia's replacement

Senate Majority Leader Mitch McConnell argues that President Obama should let the next president fill Justice Scalia's seat.
Senate Majority Leader Mitch McConnell argues that President Obama should let the next president fill Justice Scalia's seat.
Mark Wilson/Getty Images

Democrats would like the person who replaces Justice Antonin Scalia on the Supreme Court to be a liberal, so they want to see President Obama's choice for the seat confirmed. Republicans, conversely, want another conservative on the Supreme Court, so they like Senate Majority Leader Mitch McConnell's vow to block anyone Obama chooses.

The result has been dueling talking points about historical precedents. A leading Republican, Sen. Chuck Grassley (R-IA), pointed to a "standard practice over the last 80 years to not confirm Supreme Court nominees during a presidential election year." For their part, Democrats have pointed out that more than a dozen Supreme Court justices have been confirmed by the Senate during election years.

Grassley's statement isn't exactly accurate, while the Democrats' claim is basically true. But neither argument is particularly compelling, because the current situation is totally unprecedented.

It's been a century since a Supreme Court justice died during an election year. Since then, there have been only three times when a Supreme Court vacancy occurred during an election year: in 1932, 1956, and 1968. There have also been two election years — in 1940 and 1988 — when the Senate filled vacancies that had opened up the previous year. As we'll see, these examples don't line up with either party's talking points.

More fundamentally, anything Obama and Mitch McConnell do this year will be unprecedented, because they are dealing with an unprecedented political environment.

It has been nearly 25 years since a Supreme Court vacancy occurred at a time when the presidency and the Senate were controlled by different parties. And the parties are more polarized by ideology than at any other time in American history, making compromise more difficult than ever before.

The Republican argument isn't quite right

Senate Judiciary Nomination Committee Hearing For Obama's Pick For Attorney General Loretta Lynch Testifies Continues
Sen. Chuck Grassley (R-IA), left, has called for Obama to leave Scalia's seat vacant, while Sen. Patrick Leahy (D-VT) wants it filled promptly.
Photo by Mark Wilson/Getty Images

Grassley said we have an 80-year tradition of not confirming Supreme Court nominations in an election year — a claim repeated by other Republicans, including presidential candidates Ted Cruz and Marco Rubio. But it's not true. Both Justice Anthony Kennedy (in 1988) and Justice Frank Murphy (in 1940) were confirmed to the high court during an election year, and both were confirmed within the past 80 years.

What is true (and might have been what Grassley meant to say) is that it's been 80 years since the Senate confirmed someone to fill a seat that opened during an election year. Kennedy and Murphy's seats became vacant the year before their confirmation.

Either way, this doesn't prove much. To show that there's a "standard practice" of not naming justices during an election year, we would want to find examples of Supreme Court seats that were left vacant due to this supposed tradition. But there aren't many of these.

One example that arguably fits the bill is Lyndon Johnson's 1968 nomination of Abe Fortas to be chief justice. The Senate did reject his nomination, albeit over ethical concerns rather than ideological ones. But Fortas was already on the Supreme Court; the only question is whether he would be elevated to the position of chief justice. So his nomination wouldn't have changed the ideological balance of the court at all.

There's another twist to the situation in 1968: If Fortas had been elevated to chief justice, his seat would have become available for another justice. Fortas's rejection meant that Johnson's choice for Fortas's old seat, Homer Thornberry, was never considered by the Senate. But the Senate didn't object to Thornberry specifically; he was just a casualty in the fight over Fortas.

Technically, President Dwight Eisenhower's selection of William Brennan in 1956 is another example where the Senate didn't confirm an election year pick. But this isn't a precedent Republicans are going to like, since Eisenhower used his recess appointment power to put Brennan on the Court for a few months without Senate confirmation. (He was eventually confirmed the next year, after Eisenhower was reelected.)

Justice Kennedy's story doesn't prove what Democrats think

Supreme Court Justices Testify At House Budget Hearing
Justice Anthony Kennedy was a compromise choice in 1987 after Congress rejected Robert Bork for the Supreme Court.
Photo by Win McNamee/Getty Images

Democrats have pointed out that as many as 14 Supreme Court nominees have been confirmed in an election year in the history of the republic. But there are two big problems here.

One is that most of these examples are extremely old. Eight of the 14 occurred prior to 1900. Five more occurred between 1900 and 1940. Only one — Justice Anthony Kennedy in 1988 — occurred within the past 70 years.

And while Kennedy was technically confirmed in an election year, his situation doesn't really support the Democrats' argument. Kennedy's seat became available with the retirement of Justice Lewis Powell in June 1987, a full 18 months before the end of Ronald Reagan's presidency. Reagan appointed Robert Bork to the seat the next month, but Bork was rejected by the Senate in a partisan 58-42 vote.

Reagan next chose Douglas Ginsburg to fill the seat, but Ginsburg was forced to withdraw his name after it was revealed that he had smoked marijuana in the 1960s. Only after these two failed nominations did Reagan name Kennedy to the seat, on November 30, 1987.

So not only was Kennedy not an election year nomination, but the only reason his confirmation dragged into 1988 was because Reagan's first choice was blocked by Senate Democrats. If anything, the story of Bork and Kennedy shows that it was becoming more acceptable for the Senate to block nominees for ideological reasons.

The confirmation process is breaking down

Bill Frist Speaks On Bush Judicial Nominations
Senate Majority Leader Bill Frist (R-TN) making the case for faster approval of George W. Bush's judicial nominations in 2005 in the face of obstruction from Senate Democrats.
Photo by Joe Raedle/Getty Images

The fight over Scalia's replacement is just the most visible example of a broader problem that has been years in the making: Our process for confirming judges has been breaking down.

Over the past few decades, the two parties have become increasingly polarized by ideology. As a result, when the presidency is controlled by one party and the Senate is controlled by the other, there's little incentive for them to cooperate. During George W. Bush's presidency, Democrats dragged their feet on his judicial nominees in the hopes that the next president would be a Democrat. During the Obama years, Republicans have dragged their feet on his nominations for the same reason. Even when they were in the minority, opposition parties have used the filibuster to slow the confirmation process.

The level of obstructionism has risen gradually because each party had a lingering sense of obligation to cooperate. But that sense of fair play is steadily breaking down, and there isn't actually anything in the Constitution to stop a Senate majority to use its confirmation powers much more aggressively. If it wanted to, a Senate majority could refuse to approve any of the president's judicial nominees for the duration of his presidency. The Constitution doesn't provide any mechanism for resolving this kind of gridlock other than waiting for the next election.

In this sense, everything about the fight over Scalia's replacement is unprecedented — because it's occurring in an unprecedented political environment. It has been almost 25 years since a Supreme Court seat came open at a time when the presidency and Congress were controlled by different parties, and America's political parties are far more ideologically polarized than they were in 1987.

Correction: I originally wrote that it's been 30 years since a vacancy occurred with the president and Senate controlled by different parties, but it has actually been just 25 years since Thurgood Marshall's resignation in 1991.