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There is certainly long historical precedent for a Supreme Court with fewer justices. It’s cowardice.“There will be plenty of time for debate on that issue. Rejecting someone who-in all likelihood-will be eminently qualified for the In short, they don’t want to take responsibility for Republicans are trying to avoid having to show that a given nominee should be Nominee?” That’s a legitimate debate, but it would put the focus on the nomineeĪnd that person’s qualifications. The actual question should be “Should the Senate confirm Obama’s It has already had the effect ofįraming the debate as “Should Obama nominate someone?” That is trulyĮxtraordinary. The only value taken seriously is “does it work to our advantage?” That has infected today's Republican Party. Which so many others have fallen in line, speaks to the nihilistic radicalism The speed with which Cruz jumped to make this claim and with The Senate votes, regardless of when the vacancy occurs. Our true tradition is that the president nominates and True conservatives don’t invent traditions. Timing (as the Senate Majority Leader and many Republican Senators are now saying), He does, that the nominee should be rejected out of hand simply because of the Someone (both John Kasich and Marco Rubio said so in Saturday’s debate), or if This suggestion that Obama should not even nominate Is part of some “tradition.” It would be nothing but the raw, cynical use of But they should stop hiding behind the obvious fiction that doing so Senate want to block any nominee Barack Obama sends them, they have the votes Laughable if so many supposedly responsible political leaders were not taking Nominate and confirm Supreme Court justices in an election year would be Ted Cruz’s invention of this alleged "tradition" that we don’t To Ted Cruz, this constitutes “a long tradition that In one case the nomination was rejected and in So, there were two instances similar to the current (This also shows that Cruz got the math wrong-this There was no “tradition” blocking thatĮlection-year appointment. In 1940, FDR nominated Frank Murphy in January of that election year and he Johnson to nominate someone, or that it would have been inappropriate toĪ second instance took place 28 years earlier. Knowledge, no one cited Cruz’s “tradition” to say it was not appropriate for Specific nominee and specific objections to him (particularly charges of cronyism and inappropriate financial dealings). But the opposition to Fortas had everything to do with the

Homer Thornberry to take the seat held by Fortas) was blocked in the Senate,īut not because of some alleged “tradition.” Certainly there were Senators who wanted the next president to name a new justice. Nomination of Abe Fortas to be Chief Justice to succeed Earl Warren (and of Justice in an election year and did not have the nominee confirmed. Only been one instance in which a president was in a position to nominate a What about Cruz's contention about the last 80 years? Even that does not hold up. The founders saw no impediment to a president in the final year-or even in the final weeks-of the presidency successfully appointing new justices to the Supreme Court. Adams could easily have left the Supreme Court vacancy for Jefferson-who had alreadyīeen elected, after all, and would take office in a matter of weeks-and didn’t. It doesn’t get more "original intent" than It was an election yearĪnd he was not running for reelection. Two nominations to the Supreme Court approved by the Senate. In the final year of his presidency, George Washington had So is seemsĪppropriate to ask: what did the Founders actually do in such circumstances? Thing Scalia was known for, it is his originalist interpretation of theĬonstitution: it means what the founding generation said it meant. Increasingly the position of the entire Republican Party) is that this absurdĭebate is taking place over the replacement of Antonin Scalia. Perhaps the most striking irony of Cruz’s position (and The Supreme Court, and Marshall was confirmed by a lame duck Senate. Yet he did not hesitate to fill the vacancy in The truest sense of the term-he was serving out the remainder of his term afterīeing repudiated by the voters. Lost his re-election bid to Thomas Jefferson in the election of 1800. John Adams nominated him in January 1801, after he If he honestly believes it is not legitimate to nominate andĬonfirm a justice in an election year, Ted Cruz must hate the appointment ofĬhief Justice John Marshall. There is a long tradition that youĭon't do this in an election year."-Senator Ted Cruz Nominated and confirmed in an election year. “It has been 80 years since a Supreme Court vacancy was Mark Byrnes is an associate professor of history at Wofford College in Spartanburg, SC.