Transcript

Doug Blackmon: Welcome back to American Forum. Within hours of the death of Supreme Court Justice Antonin Scalia a bitter political shootout had begun on who would name his successor. What powers are held by the Republican controlled U.S. Senate and the Democrat controlled White House? Whether it’s appropriate for an outgoing lame duck president to make appointments at all? And whether the opposing party should care more about duty to constitutional principles than to its own ideology? Both sides of the debate immediately invoked history as well, claiming that past practice over the last 240 years supported their position. But what’s the truth? What does the Constitution say about all of this? What is a lame duck president? And what is the real history behind Supreme Court appointments? Our guest today is Barbara Perry a preeminent scholar of the history of the U.S. Supreme Court and the American presidency and a senior fellow at the University of Virginia’s Miller Center. Recently she wrote a comprehensive summation of the relevant history around these critical appointments in the Washington Post. An article that went viral on the internet by tens of thousands of readers. Barbara thanks for joining us.

Barbara Perry: It’s great to be with you Doug.

1:51 Blackmon: So what does the Constitution say about how a Supreme Court’s justice is named, appointed and finally becomes a member of the court?

FACTOID: The Question: Can Senate ignore a Supreme Court nomination?

Perry: This is the simplest part of this conversation. And that is that the Constitution in Article II says that the president will nominate and by and with the consent of the Senate, appoint members of the Supreme Court.

FACTOID: Article II of U.S. Constitution defines powers of the president

2:17 Blackmon: And what does it say about ah, how many members of the Senate have to vote for the nominee and what the process should be and whether there are going to be hearings? What does it say about all that?

Perry: The Constitution is utterly silent on all of those points. But we can go back to the Constitutional Convention and notes that James Madison made there in 1787 to see what did the Founders talk about when they talked about this process? First thing to note is they again were utterly silent on qualifications. So much to the surprise of many people there’s nothing in the Constitution of laws of the United States that say a Supreme Court Justice even has to be a lawyer. But in practice all the members of the Court since its founding has been lawyers. So that’s one point. There are no qualifications mentioned in the Constitution or in law. In terms of how many people should be on the Supreme Court that too is a silent point of the Constitution. But by law the Congress creates the number of seats. That has been nine since 1869 but it has varied from five to eleven. In terms of what the process in the Senate should be, again utterly silent in the Constitution but by historical precedence it is the case that the Senate takes its advise and consent role very seriously and it has developed over the years the modern era in which we expect for most appointments that there will be a judiciary committee hearing televised with the presence of the nominee. There will be much ox goring on the part of both sides in terms of Democrats and Republicans often fighting over a seat on the Supreme Court. And so there will be broad debates in the Senate. There will also be broad debates outside the Senate among interest groups and now presidential candidates. So now all of those things go in to make this an amazing ah, time in our history, particularly to have a Supreme Court opening appear in the midst of a presidential election.

4:15 Blackmon: And so the struggle over what to do in response to Justice Scalia’s death in the present moment has, there have been these counter claims about what the indication of history would be. Bottom line, is the idea that an outgoing president would name a Supreme Court justice in the last seven or eight months of his term? And a president who is not going to be reelected can’t come back. Is that an unusual thing to happen in American history?

FACTOID: Justice Scalia was appointed by Reagan, served from 1986-2016

Perry: It is not at all. Those who indicate that it is an oddity in American history are just wrong. So in going back through the 117 people who have been named to and have served on the U.S. Supreme Court all the way up to the present eight members of the bench, I found that 14 presidents by my account had appointed 21 justices of the Supreme Court, that is successfully placed the justice on the Supreme Court in the midst of a presidential election year. So that’s over a third of the presidents have done that. Now having said that, they range widely over a spectrum from true lame duck presidents, that is by the classic definition of a lame duck president or a lame duck office holder, would be one who is still in office after his or her successor has been elected. And so we’re just waiting for that person’s term to run out or expire. But even at that there have been six presidents in American history even after their successors have been elected and those presidents were simply counting the days until they left office and their term would be up, six presidents named successfully members of the U.S. Supreme Court though they themselves would be leaving the White House.

6:00 Blackmon: And so that is the definition, classic true definition of a lame duck president. It is not, it’s not just somebody who you know is going to be leaving at the end of the term, but it is where the successor has actually been selected and has not yet been inaugurated. So we’ve got a president who knows they are headed out the door, knows who’s going to be coming soon in the last weeks of their presidency, and nonetheless, six times you say. When did those kinds of appointments occur?

Perry: Right, they tend to be the older appointments in American history. So they go all the way back to John Adams for example. John Adams had lost the election famously or infamously depending on what side one was on at the time. Whether one was a Federalist as he was or what were called the Democratic Republicans or the Jeffersonians. And people think that Bush v. Gore in 2000 was an acrimonious election. Certainly the election of 1800 was. And Adams had been defeated. The Federalists had been defeated.

They were on their way out of the White House and he famously appointed John Marshall, his secretary of state to be the chief justice. Not simply an associate justice but the chief justice. So that’s the first time in American history that it happened and it carries on through into the 1800s. One of the most infamous examples was that Andrew Jackson on his last full day in office in the 1830s appointed, actually named two people, one declined but appointed a person who successfully sat on the U.S. Supreme Court. So these tend to be the older appointments. One that is being pointed to now is from some 80 years ago and that is when Herbert Hoover appointed Benjamin Cardozo. So that would have been in 1932 the presidential race in which he would, Herbert Hoover, ultimately would lose to Franklin Roosevelt on his first election to the presidency. But the fact is that Hoover would lose and yet he went ahead and appointed someone. Again though, he didn’t know he was going to lose the presidency and it seems to me that that is perfectly legitimate for a president who is running for office. So we’ve had several examples of that where a president running for office or running for a second term not knowing that they are going to lose and they go ahead and make an appointment and they are approved. So in fact, Benjamin Cardozo was so universally approved that he was unanimously confirmed by the United States Senate in 1932. And by all accounts is viewed as one of the greatest justices ever to sit on the U.S. Supreme Court.

FACTOID: John Adams lost re-election bid to Thomas Jefferson in 1800

FACTOID: The Federalists advocated for a strong central government

FACTOID: Justice John Marshall served from 1801 until death in 1835

There’s also the example of a lame duck president in 1968, Lyndon Johnson who gets word in the middle of the summer of that year.

FACTOID: Listen to Johnson discussions: millercenter.org/LBJ-Fortas

So just about five months before the 1968 very contentious presidential election that the then Chief Justice Earl Warren reaches out to the President and says I want to retire but I won’t leave until my successor is named but, Mr. President, I would like you, Lyndon Johnson to name my successor.

FACTOID: Earl Warren served as chief justice from 1953-1969

Even though Warren was a Republican. He had been the Republican governor of California he had been nominated by Eisenhower to be the chief justice. By the way his first judgeship ever, he had never been a judge and he became chief justice of the United States which is always an interesting historical twist. And Johnson was very pleased to think that he would get as one of his last acts the possibility of nominating the chief justice. So he went back to the well of his old friend, Abe Fortas, some would call him a crony of Lyndon Johnson but a brilliant man who was very highly respected for his intellect and jurisprudence had been put on the bench by Johnson as an associate justice in 1965. In 1968 Lyndon Johnson decided I’ll promote him as the chief, which had been done in the past as well.

FACTOID: Abe Fortas was Supreme Court associate justice from ’65 to ’69

There was precedence of that. That would then give him the opportunity to place a new associate justice on the bench. And so he picked two people then. He picked and nominated sent to the Senate the names of Abe Fortas promoted to chief justice and Homer Thornberry another of the President’s Texas cronies to go into the associate chair that would be vacated by Fortas should he be approved for chief justice. And indeed there was a huge majority of Democrats in the Senate at that time and one would have thought that these would sail through for Johnson. But because he was viewed as a lame duck people will remember that he had stepped aside from the race. He could have run again in ’68 but he decided after a strong showing by Eugene McCarthy in the New Hampshire primary. So by the end of March Johnson had said I will not run again. So he was definitely a lame duck president and the combination of conservative Republicans in the Senate who did not make up the majority but southern conservative Democrats when they formed forces and joined together were able to filibuster to death the Abe Fortas nomination which meant that the Homer Thornberry nomination also became a moot point. So two losses for President Johnson. He would therefore not get to name a successor to Earl Warren. Earl Warren stayed on the bench until he just couldn’t stay any longer. He was 77, 78 years old. And he had to step off once Richard Nixon was elected in made president in 1969. And this was very upsetting to Earl Warren because he thoroughly despised his fellow Californian Richard Nixon. And so that was the end for Johnson and the end for Earl Warren as well.

11:28 Blackmon: So now the President has nominated Judge Merrick Garland the chief judge of the D. C. Circuit Court of Appeals. But the Republican leadership in the Senate has made clear that as they have said all along that they have no intention of holding hearings at all on this nomination. Is there any precedent in history for the Senate simply refusing to consider a nomination from a president?

Perry: There is absolutely no evidence that I can find of the Senate ever denying a hearing to a president’s nomination for the U. S. Supreme Court.

Blackmon: Never, not once, never?

Perry: Not once. It’s amazing when you think about how precedented this would be. That there have been hearings held in order to oppose a president’s nomination and, in fact, it would seem that an opponents would want to take that opportunity to use Senate hearings before the judiciary committee to do so. But there is not one example of the Senate ever denying a hearing to a president’s nominee for the U.S. Supreme Court.

12:25 Blackmon: And there’s nothing in the Constitution that offers that as an option. We’ve talked about the Constitution is sort of murky about the mechanics of this. The Constitution says that the president names, nominated someone and but with the advice and consent of the Senate. It doesn’t lay out a procedure but it certainly doesn’t strictly say the Senate then can decide whether to consider that. The Constitution would seem to infer, I think it’s probably a fair interpretation that, would seem to infer that the Senate must consider every nominee. There’s certainly no provision that gives them the option of simply refusing to consider a nominee.

Perry: I think that’s an excellent point to raise. That the wording of the Constitution is that the president shall nominate and by and within advice and consent of the Senate appoint federal judges. So it doesn’t seem to leave an option for the Senate not to take up that possibility. It gives them the option to advise in whichever they wish and it gives them the option not to confirm if one infers from advise and consent. If there is consent there could also be nonconsent. But there doesn’t seem to be an option for no consideration whatsoever. We should also point out that hearings are a relatively modern element of this mechanism. That the Senate judiciary committee as far back as the late 1900s began to have hearings but they weren’t there from the very founding of the American republic as we know it under this constitution.

14:01 Blackmon: So how did the Senate’s advice and consent work when you didn’t have hearings like we’re familiar with?

Perry: Right. So the Senate would have debates as a whole and usually within a day or two of receiving the nomination from the president typically would have approved. On occasion they would choose not to consent or not to confirm. the But they would sit as a full body, debate, and then go ahead and nominate or approve the nomination or not approve the nomination.

14:28 Blackmon: But so there is a long history of, of situations in which a president whether they are at the end of their presidency or not but where a president is faced with a highly polarized political climate that maybe the opposition party controlled the Senate. Ah, maybe the president is unpopular at the time but where presidents who don’t have an easy road ahead at the time they wanted to nominate someone to the Supreme Court that they try to navigate that by proposing a justice who is either from the other party or a centrist, or but somehow obviously a fairly obvious candidate who would be most palatable to a broad range of political interests. How does the nomination of Merrick Garland fit into that time tested strategy?

Perry: Merrick Garland is among the most meritorious of any nominee to be named to the U.S. Supreme Court.

FACTOID: Garland was also considered for the Supreme Court in 2009, 2010

15:25 Blackmon: On just paper credentials?

Perry: On paper credentials alone and we should say, we should back up to say thank goodness most members of the Supreme Court have been highly meritorious and we typically have very meritorious members of the Court and we have a particularly meritorious group of now eight justices on the U.S. Supreme Court. But even at that, Merrick Garland stands out both by virtue of his education, so he graduated summa cum laude as an undergraduate from Harvard, magna cum laude from the law school, served on the Law Review. And there’s another element from this meritorious point and that is a centrist by virtue of both his decisions that he’s made in 19 years on the D. C. Circuit Court of Appeals which is viewed as the second most powerful and prestigious court in the land, just under the U.S. Supreme Court. But having said that he also served and was named to court clerkships by two Republican, by a Republican president. So he served for Henry Friendly who was appointed by Eisenhower to the second circuit court of appeals. He served for William Brennan who, yes, everyone knows he’s a liberal on the U.S. Supreme Court, but he was nominated by Eisenhower. So that gives him again a more centrist background then some might have predicted that President Obama would put on the Court. So he is not only highly meritorious, a centrist by his own decisions, but also has worked for two federal judges who were appointed by Dwight Eisenhower, a Republican.

FACTOID: Garland graduated Magna Cum Laude from Harvard Law School

17:00 Blackmon: But so over the course of this long history presidents, other presidents who have, who have made reelection year appointments, some of them as lame ducks, some of them not yet knowing whether they were going to be reelected. There are several scenarios. But, there’s Hoover, Taft, Benjamin Harrison, ah, Franklin Roosevelt, ah, Nixon, Eisenhower, Wilson, Cleveland, Jefferson who we’ve talked about. I mean who are stretched out across time. Many, many different circum, specific circumstances but over time and continuing right up to the president, I skipped over Lincoln and Grant the Civil War era presidents. So there is this, the one thing that is clear is that over the course of history when there have been employments on the Court even if his presidency is winding down or may be winding down that presidents have typically exercised their authority clearly vested from the Constitution to, to, to attempt to place people on the Court. And that’s a completely normal thing.

Perry: Yes, and attempt and be successful at. Again we say 14 presidents, a third of all presidents have done this. And in my mind I view it as a spectrum that people want to view this as is this legitimate or illegitimate for a president in a presidential election year using the classic lame duck definition that he’s already had his successor elected and he’s just waiting for the days to run out of his term, or he himself has been reelected. So I view it as a spectrum. You can make the argument I think what seems the least legitimate if you want a view that the people should have a role even if it’s a tempered role as the Founders saw it. So again the less legitimate form of this it seems to me in history would be the examples that we gave of presidents whose successors had been selected and the days were waning in the lame duck president’s term. That could be viewed as being perhaps the least legitimate. The most legitimate on the other end of the spectrum would be Lincoln and Grant who had already been reelected to their second term but in the process, and in that lengthier process of waiting for the election results to come in in November and for the inauguration to take place in March that someone left the Supreme Court. So I think people would say that was the most legitimate. Then maybe next to that would be the six presidents and you named Eisenhower as one of them a more recent president certainly. Nixon as well. They are running for reelection. They will be reelected. Now granted they don’t know that but they will be reelected and so once we look back and say well they appointed someone but then they went on to be reelected. I think people would see that as pretty legitimate. What’s fascinating about the Eisenhower appointment is that suddenly an opening appeared on the Supreme Court when Sherman Minton left due to ill health only three weeks before the election in 1956. And not only did Eisenhower make an appointment, he made a recess appointment. That is the Senate was in recess and presidents are allowed to do this. He made a recess appointment of William Brennan who would end up becoming one of the most liberal justices ever and supposedly Eisenhower once said when asked after leaving the presidency, did you ever make mistakes? There is perhaps an apocryphal story, but it is told he said yes, I made two of them and they are both on the Supreme Court. Earl Warren and Bill Brennan. But it’s fascinating that Brennan went on to serve over 30 years. Now, we should also backup to say that that recess appointment was then ultimately approved a few months later when the Senate came back into session. But again, only three weeks before the presidential race? Eisenhower couldn’t say for sure he was going to be reelected and yet he went ahead and made an appointment. And then I would say in the midst of this kind of legitimacy spectrum would be the current situation of Barack Obama. Also with other presidents including George Washington. So in this list we have George Washington and Andrew Jackson and Grover Cleveland and Ronald Reagan. These were presidents who had served their two terms either by tradition, that is the tradition set by Washington, or by constitutional amendment that they could only serve two terms. And they are in this position in the final year of their term, the final year of their second term. They cannot run for reelection but an opening appears on the bench, and I think we want to point out that even George Washington made an appointment. In fact made two appointments in that period.

21:25 Blackmon: I want to ask you about one other historical dimension to all of this. And that is that over the history not just politicization around specific nominees to the Court but also there have been any number of efforts by various presidents to alter the Court in more profound ways. Congress has changed the number of members of the Court at times in the past. But there are some voices out there right now saying maybe this is the time to reconsider how the Court works. Maybe a four to four Court would be better. Maybe the President shouldn’t name anybody at all and we should just go along with the idea of an eight person Court for a while. But there has been, there has been some thought, there hasn’t been a lot of attention but maybe this is the time to reconsider the way the Court works. Is there any validity to that?

Perry: I think this too will be an ox coring question. So that is if someone is proclaiming that it would be good to have a four to four Court and just carry on with that and indeed the Senate by not acting on filling the Scalia seat could by default create a four to four Court. Or technically they could remove a seat from the Court. I don’t anticipate that they will do that. But the fact of the matter is that if the Court ties four to four on cases as they come to them, then we should point out that the Court is taking far fewer cases than they did over the decades. They’re now down to about 60 to 70 cases only that they hear fully and produce full opinions on. But having said that they are important cases. The Court when it decides four to four as it may do in a hot button issue now before it, what will happen is that the lower court ruling just below it, whether that be the highest state court or a federal appeals court, that decision will remain in place. And the problem with it is it does not set a national precedent. So again it’s an ox coring question. If one is happy with how a state court decided or an appeals court decided and the court divides on it then that person would say well good then I get to have my decision. On the other hand that person might say well I would rather have that decision but I would rather have it apply across the land. And people feel this way on things like abortion, whether one is for or against one wants that decision to be applicable across the country. Gay rights is another issue. Whether one is for or against it. Gay marriage, for or against. One would want a ruling by the Court to cover the entire United States.

FACTOID: Supreme Court to soon hear cases on voting, civil rights, unions

23:54 Blackmon: So you have laid out I think in the most persuasive and comprehensive way imaginable this long history, this very complicated history of the country in a whole lot of different directions but that it is absolutely irrefutable in what the expectations of the Founding Fathers were around, at a minimum, the process. All the more ironic that the associate justice who has passed away and that has triggered this entire thing was the most passionate “originalist” of any member of the Court.So what would Justice Scalia tell us today if you were channeling for him, what would Justice Scalia tell us would be the right approach for the President to take and the Senate to take?

FACTOID: Scalia’s SCOTUS nomination was confirmed by Senate vote 98-0

Perry: Well I was very lucky to know Justice Scalia as an acquaintance and even a friend from having served in the Court for a year in the 1990s. And I think if he could look down on us he would be roaring that I would even attempt to answer this question. But it is the case that over and over he was described and described himself as an originalist believing in the original intent of the Framers. And so he would say, let the process begin. Let the President make the nomination. I don’t think Justice Scalia would say he shouldn’t because he’s in the last months of his presidency. He would say, where does it say that in the Constitution? He would say, as Obama did, it’s his duty to make a nomination and I think Justice Scalia would say, as the Constitution reads by and with the consent of the Senate, let the games begin.

25:21 Blackmon: Barbara Perry, thanks for joining us.

Perry: Thank you, Doug.

Blackmon: We hope you’ll join this conversation with American Forum on the Miller Center Facebook page, or by following us on Twitter @douglasblackmon or @americanforumTV. To send us a comment, watch other episodes, download podcasts or read a transcript visit us at millercenter.org/americanforum. I’m Doug Blackmon. See you next week.