Supreme Court Vacancies In Election Years
By June Hunt
As a background, in 1787 the US Constitution was crafted by the Founding Fathers and signed as a document that, in part, defined the supreme law of the United States.
At the Constitutional Convention, Benjamin Franklin implored the delegates to seek the face and benevolence of Almighty God. This “appeal for God’s intervention” proposed the appointment of a chaplain and the beginning of each day’s business with prayer for discernment and wisdom.
With George Washington leading the way, one of the greatest documents the world has ever witnessed was created to guide the people with a just and balanced government. Our first president said, “It is impossible to rightly govern the world without God and the Bible.” Indeed the Bible says, “If my people, who are called by my name, will humble themselves and pray and seek my face and turn from their wicked ways, then I will hear from heaven, and I will forgive their sin and will heal their land” (2 Chronicles 7:14).
Since September 18, 2020, with the death of Justice Ruth Bader Ginsberg and the resulting vacancy on the highest court in the land, the reactions of people have been widely varied with accurate statements and inaccurate assumptions. So, what is true and what is false?
For correct decision-making we must acknowledge the wise words of Jesus, “You will know the truth, and the truth will set you free” (John 8:32).
May the following facts shed light on your decision-making.
- What is the process to become a Supreme Court Justice?
A Supreme Court Justice is nominated by the President of the United States, then confirmed by the United States Senate.
- In Article 2 – Section 2 of the US Constitution, the language is as follows: “The President . . . shall nominate and by and with the advice and consent of the Judges of the Supreme Court and all other Officers of the United States.”
- The US Senate’s role is that of “advise and consent,” meaning to confirm or not confirm the presidential nomination. (Notice, no exception is stated in the US Constitution during election years.)
- In past years, when the Supreme Court had a vacancy during a presidential election year, what legal procedure was followed?
In the Supreme Court, 29 vacancies have occurred during a presidential election year, and 29 times the current President nominated candidates to fill those vacant seats. Specifically of the 29 vacancies:
- When the President and the Senate were members of the same political party, 17 out of 19 Supreme Court nominees were confirmed.
- When the President and the Senate were from opposing parties, only 1 of the 10 presidential nominees was confirmed by the Senate before the election.
- What is the timing of the hearings for nominees in an election year?
Of the Supreme Court nominees in election years:
- 70% were confirmed in 45 days or less
- Over 50% were confirmed in 16 days or less
- 13 were confirmed in one week or less
- 4 were confirmed on the same day as the nomination
- What about Lame Duck Appointments to the Court?
In the world of politics, a “lame duck” president typically refers to an outgoing president whose successor has already been elected.
- If a seat is vacant on the Supreme Court, even when the president is “on the way out,” and if a presidential nominee is perceived as an accomplished jurist, the Senate can vote to accept the nominee.
- For example, on November 13, 1980 after being defeated for re-election, Democratic President Jimmy Carter nominated Stephen Breyer to the 1st Circuit Court of Appeals. A month later he was approved by an 83-10 vote by the US Senate for the New England Appellate Court. At a later time, he was nominated and confirmed for the Supreme Court of the United States.
- In 2020 with approximately a month before the presidential election, didn’t Republicans break the law by pushing through the nomination and confirmation process to fill the vacancy left by Justice Ginsberg on the Supreme Court?
According to National Review, no such law exists against filling a vacant Supreme Court seat. Choosing not to fill a vacancy would be a historically unprecedented act. It has never happened in all of American history. No evidence exists that Democrats, in the same position, would do differently as their own history demonstrates.
- In American history, 29 times a Supreme Court vacancy occurred in a presidential election year, and in all 29 cases the president made a nomination. George Washington did it three times. John Adams did it, as did Thomas Jefferson, Abraham Lincoln, Ulysses S. Grant, Franklin D. Roosevelt, Dwight Eisenhower, and of course, Barack Obama.
- Specifically, 22 of the 44 Presidents faced this situation, and all 22 made the decision to send a nomination to the Senate, whether or not they had the votes in the Senate to achieve a confirmation.
- Historically, didn’t the Republican Senate create a new precedent in 2016 by not confirming a Democratic presidential nomination?
No, history shows the political party in power (in the majority)—whether Democrat or Republican—has always filled the seat. Doing so is not inconsistent with the Senate Republicans not confirming the open seat vacated by Justice Antonin Scalia in 2016.
- The reason is simple. Historically, when one political party controls the Senate, Presidents of the same party have filled Supreme Court vacancies—even in a presidential election year, even in a lame-duck session after the election, even after defeat.
- Likewise, when the opposite party controls the Senate, as happened in 2016, the Senate can block Supreme Court nominees sent up in a presidential election year, and hold the seat open for the next year’s presidential winner. Both of those precedents are settled by experience throughout US history.
- After a Supreme Court vacancy occurs in an election year, if angry people call a nomination and confirmation of a judge “illegitimate,” “illegal” or “unconstitutional” based on timing, could their claim be true?
No, the timing issue is not illegitimate, illegal or unconstitutional.
- Even Justice Ruth Bader Ginsberg said about a Supreme Court vacancy in an election year, “A President doesn’t stop being a President at any point during his term.” (The President’s term of office lasts for four (4) full years until the following January.)
- The acting President has the right and obligation to nominate a judge to the court, which then is sent it to the Senate for confirmation or lack of confirmation. This legal process is the law of the land for the United States of America.
Let us pray for the heart of God’s very words to be our reality . . .
“I will restore your judges as at first, and your counselors as at the beginning; after that you will be called the city of righteousness, a faithful city” (Isaiah 1:26 NASB).
Therefore, we need to vote for wise political leaders who will ultimately be led by the Lord, and pray for Judges to make wise rulings that are right in God’s sight.
May God bless our America,
June Hunt, Founder
The Hope Center
Hope For The Heart