Since the passing of Justice Ruth Bader Ginsburg on September 18, Democrats have argued that precedent suggests Republicans should refrain from nominating or confirming Justice Ginsburg’s successor. Senate Minority Leader Chuck Schumer even went so far as to claim that the Republicans have “no right” to fill the seat. The New York Democrat told reporters on Tuesday, “If Leader McConnell presses forward, the Republican majority will have stolen two Supreme Court seats four years apart — using completely contradictory rationales.” 

Is Schumer correct that Republicans have “no right” to fill the vacancy and that doing so constitutes “stealing” a Supreme Court seat?

“If Leader McConnell presses forward, the Republican majority will have stolen two Supreme Court seats four years apart — using completely contradictory rationales.”
Senate Minority Leader Chuck Schumer, D-N.Y.

False. Completely make believe.

The United States Constitution states that the president “shall nominate” justices of the Supreme Court “with the Advice and Consent of the Senate.” The Constitution makes no exception for an election year. 

That doesn’t mean, of course, that the Senate must confirm a president’s nominee. The Senate has constitutional prerogative to determine whether or not to move forward with confirmation. That’s the advice and consent part. 

A president who fills a Supreme Court vacancy, therefore, is not “stealing” anything; he is fulfilling his constitutional duty. The Senate fulfills its duty by either confirming the nominee or not at its discretion.  In neither case has the upper chamber “stolen” anything. 

Ok, so the president has the right to nominate someone to a Supreme Court vacancy whenever it occurs, and the Senate has the right to confirm that nominee or not. But what about precedent?

Although precedent is not binding, the weight of the historical evidence, in this case, favors the Republicans.

  • There have been 29 Supreme Court vacancies during election years, or during lame-duck sessions before the next presidential inauguration. In each case, the president nominated someone to fill the vacancy. 
  • Nineteen of those election-year or lame duck vacancies occurred when the same party controlled both the White House and the Senate; in 17 of those times, the Senate confirmed the nominee.  
  • On the 10 other occasions, when the White House and the Senate were controlled by different parties, the Senate confirmed the nomination only twice.

The Democrats, therefore, are wrong.  Supreme Court seats do not belong to one party or another. And, according to both Constitutional law and historical precedent, it is perfectly appropriate for the president to nominate and for the Senate to confirm a new Supreme Court justice even during an election year.