That would be George Washington’s nomination of John Rutledge to be Chief Justice which was rejected by a 10-14 vote. [sup]*[/sup]
The first instance of a nomination being rejected by the Senate not taking a formal vote on the nomination was John Quincy Adams’ December 1828 lame duck nomination of John Crittenden. The Senate did vote to postpone a vote on the confirmation and never got around to taking it up again. Andrew Jackson had already won the election and made a nomination upon taking office in March 1829. His nominee was seated.
A couple prior Washington nominations did not result in a justice taking a seat on the court, but for reasons other than being rejected by a vote. One refused the office after the Senate voted to confirm. Another nomination was withdrawn for a day to meet a technical requirement of the law.
So, it’s fine if the Democratic senators take the term “advise and consent” to mean, “We advise you to choose Garland, or else no consent.” They won their elections too.
It may be necessary. If we continue on the path that means when you have a democratic president and a GOP senator, SCOTUS judges do not get confirmed. But if you have a republican president and democratic senator, SCOTUS judges do get confirmed. Since there are 4 possible configurations, only in 1 (dem president, dem senate) do SCOTUS justices get confirmed. And that is assuming the filibuster was removed and you only need 51, not 60 votes.
But even if you remove the filibuster, if judges get confirmed with a GOP president and dem senate but not during a dem president and GOP senate, that means most judges will be GOP judges.
Sure, that’s fine. Elect enough Democrats to the Senate and they can make that stick.
But so long as the objecting party is in the minority then they cannot absolutely get their way. The majority party could vote to eliminate the filibuster and hold a vote to grant advise and consent to the nominee. The minority party could not prevent or vote that down.
It was John Rutledge in 1795. Washington had appointed him Chief Justice as a recess appointment, and then when the Senate had come back in session, they rejected him for political reasons. He had been a pretty strong opponent of the Jay Treaty with Britain, which made him the target of press attacks (of the, “He’s a crazy drunk” variety. He wasn’t actually) and made him unpopular in the Senate, who had ratified the treaty pretty overwhelmingly.
Yup. John Marshall has a lot to answer for. (Don’t any of these America-Loving Conservatives ever read a history book?)
I’ll say it again–the Democrats should eloquently argue against any Trump nominee. That is, if there are any arguments against him or her–I rather think there will be. They can’t stop the vote. But it will also be a chance for Democratic voices to be heard. After all, we’ll need another Presidential Nominee in a few years…
It wasn’t my point to suggest that this was actually fine. It was my attempt to reduce what is going on into absurdity, in hopes that instead of taking this further we make some attempt to ratchet it back to normalcy.
He didn’t say to only confirm Garland. He said to refuse to confirm anyone until Garland has his hearing. They tried an end run around the rules, and the point is to make this not acceptable. Once that is no longer acceptable, we are back to normalcy, where nominees get voted on.
It’s not a bad idea, but I agree with those who say it’s not one we can do. Because there is the very real risk that they will amend the rules to disallow filibusters on Supreme Court nominees. We need to keep them far enough away from that trigger so that we can filibuster if one of the other judges dies.
This is not a good place to provide proper punishment for their attempts to undermine the system. Not yet. Not when so many fundamental rights could be on the line in the near future. It is not worth condemning the less fortunate to punish the wrongdoers.
We are the opposition party. We have to be strategic.
The Bork incident was a massive misfire on both sides. The Democrats wanted to get rid of him on ideological grounds, appealed to the masses, who then watched the televised hearings and demanded he be rejected, but not so much on ideological grounds but because he was a pompous ass who came off terribly on TV as that grating pedantic teacher everyone’s had at least one of. The result was fading Republican support, Democrats claiming victory from a dirty win, and the start of real trench warfare in the process. It’s not that there weren’t controversial nominations before, but both sides have been going straight to cage-match confrontations without any real consideration of the nominee’s merits. Who started it doesn’t matter as much as who is going to find a way to end it.
So, is the Senate supposed to automatically approve anyone given a “well-qualifed” rating by the ABA? Is Bork the first person to get that rating that was rejected? (I honestly don’t know the answer to that 2nd question.)
Normalcy was that a nominee like Garland would have received a hearing and be confirmed as being eminently qualified. Doing so after the fact, though abnormal, would set that right and set us back on a course where Trump could make nominations and receive similar hearings. Voila!
While I wish RBG a very, very long and prosperous life on the Supreme Court, I’m quite certain that if she dies in office in 2019, I will see the same names here justifying that the Republican president should obviously have the right to name a nominee in an election year. What’s going on is not normal.
Or are you saying that the rules require a hearing on any nominee, which you are going to restore by not holding any hearings on any nominee? And that will make not holding hearings on a nominee acceptable?
Is anyone justifying that? What folks are justifying is the Senate’s power to refuse to consider the nominee. It’s a political move, and as such can really only be judged by whether it works or not. It seems to be working now, but there is a long game to be played here, and I’m not certain it’s a winning strategy in that game. But we’ll see…
If RBG dies in 2019, it’s very likely that Republicans will still hold the Senate, so I doubt it’ll be an issue that year. If, by some miracle, the Dems took control of the Senate in 2018, it wouldn’t surprise me at all if they refused to hold a hearing for a Trump nominee.
It has been up and down throughout the history of the court. I don’t think there was a particular era that was great. The nadir was probably the mid 1960s and it has slowly gotten better since then.