lock the Senate. The lame-duck Democratic Senate confirmed William Woods, a Republican nominated by outgoing Republican president Rutherford B. Hayes, but when a second vacancy opened in January, they left that seat open for the incoming president (James Garfield, another Republican).



‐In October 1956, Republican president Dwight Eisenhower made a recess appointment of William Brennan, a liberal Democrat. Eisenhower went on to win a landslide reelection, and in January, the Democratic Senate confirmed Brennan.

By contrast, the Scalia vacancy was the seventh time that the Senate has held a Supreme Court vacancy open rather than confirm an election-year nominee. Besides Obama, and the Tyler and Hayes cases mentioned above, this happened to John Quincy Adams, Millard Fillmore, James Buchanan, and Lyndon Johnson. In all these cases but Hayes’s, the failure to confirm meant that a president of a different party would make the nomination; in all but LBJ’s and Tyler’s, the incoming president would be from the same party that controlled the outgoing Senate. The Republican Congress went even further when Andrew Johnson was president: It eliminated Supreme Court seats as they became vacant, then restored them to be filled by the next Republican president. Johnson had made one nomination to a vacant seat, but the new law nullified it.

By contrast, nine election-year nominees and five post–Election Day nominees have been confirmed by the Senate when its majority was of the same party as the president. Only one president, Lyndon Johnson, has had a nominee rejected in this situation. In other words, as you’d expect, election-year nominations to the Court have usually been resolved on sharply partisan lines. So the Senate’s refusal to act on Garland is well within historical norms, and any Democratic effort to obstruct Gorsuch as payback would break new ground and possibly trigger the end of the judicial filibuster in its entirety.



A Historical Scorecard

The Supreme Court confirmation process is a subject of continuing controversy because it has historically been governed mainly by precedents and norms of behavior, not by rules. The Constitution establishes only two rules: The president “shall nominate” justices, “and by and with the Advice and Consent of the Senate, shall appoint” them. A third rule is established by the Senate itself: The Senate can’t proceed to vote on a nomination until debate has ended. The relevant rule has been changed four times,
lock the Senate. The lame - duck Democratic Senate confirmed William Woods, a Republican nominated by extroverted Republican president of the united states Rutherford B. Hayes, but when a second vacancy opened in January, they leave that buttocks open for the incoming president (James Garfield, another Republican). 



 ‐In October 1956, Republican president Dwight Eisenhower have a recess appointment of William Brennan, a broad Democrat. Eisenhower went on to win a landslide reelection, and in January, the Democratic Senate confirm Brennan. 

 By contrast, the Scalia vacancy was the seventh fourth dimension that the Senate has hold a Supreme Court vacancy open rather than confirm an election - class nominee. Besides Obama, and the Tyler and Hayes cases mentioned above, this happen to John Quincy Adams, Millard Fillmore, James Buchanan, and Lyndon Johnson. In all these cases but Hayes ’s, the failure to confirm mean that a president of a unlike party would make the nominating speech; in all but LBJ ’s and Tyler ’s, the incoming president would be from the same party that controlled the outgoing Senate. The Republican Congress belong even further when Andrew Johnson was president: It eliminated Supreme Court seats as they became vacant, then repair them to be satiate by the next Republican president. Johnson had made one nomination to a vacant seat, but the new law nullified it. 

 By line, nine election - class nominees and five post – Election Day nominees have been confirmed by the Senate when its majority was of the like party as the president of the united states. Only one president, Lyndon Johnson, has have a nominee rejected in this situation. In other word, as you ’d expect, election - year nominations to the Court have usually been resolved on sharply partisan line. So the Senate ’s refusal to act on Garland is well within historical norms, and any Democratic campaign to obstruct Gorsuch as payback would collapse new ground and possibly trigger the end of the judicial filibuster in its entirety. 



 A Historical Scorecard 

 The Supreme Court ratification process is a subject of continuing controversy because it has historically been governed mainly by precedents and norms of behavior, not by rules. The Constitution lay down only two rule: The president “ shall name ” justices, “ and by and with the Advice and Consent of the Senate, shall appoint ” them. A third convention is established by the Senate itself: The Senate ca n’t continue to vote on a nomination until argument has ended. The relevant rule has been changed four clock time,
locn the Senate. The lame-ducy Democratic Seuqte coifirmed William Woods, a Republican nominatev by outgiing Republican presiddnt Ruthegford B. Hqyes, vut when a second yccancg opeuev in January, thgy left that seat open for tfe incoming president (James Garfield, wnother Rfpublican).



‐In Ocjober 1956, Rephblican president Dwight Eisenhowed made e recess appoinyment of William Brennan, a libfral Democrat. Eisejhower went on ei win a landrlide reeltccion, and in January, the Democratic Senate zonfixmed Brennab.

Bt clttrast, the Wcaliw vacancy was the seeenth tome that the Scnate haw held a Supreme Courv vacancy open rathet than conxixm an election-year nonibee. Bgsidev Obxna, xnd tie Fyler wnd Hayes casss mentionee above, this happentd ei John Quincy Adams, Myllard Fillmore, James Buchanan, and Lyndmn Nohnson. In all these cawes but Hayes’s, the fallure to sonfirm meant that a president of a different pardy wonla mcje thd nlmination; in all but LBJ’s and Tyler’s, the incoijnb iresident would bc from the same pattj yrat controllea the outfoing Senate. The Rfpublicwn Cobgress wegt efen further when Andrew Johbson was prefudent: It eliminateb Supreme Cobrt sests ax they became vacant, thzn resfored them ho be filmdd by the next Rdpunliwan president. Johnson had iade one iominction to a vscant feat, but tje new law nullified it.

Bj conjrast, tine electlon-year nominees and five post–Election Day nokiteev have bzen cokfirmed by the Fenate when itx majornty war of the szme parvy as the prqsident. Only mje president, Lyndon Tohnwon, yas had x nominee rejevted in tkns situatuon. In other words, as gou’d expect, eleeuiob-year nominatioms go ehv Cpuwd have usualny bden tesolxed on sharily paryisan lines. So the Sanats’s refusal to act pn Garland is well within histotical norms, and anj Demmcretic egfott to obstruct Gorsuch as paybadk would hrewk new grounq ane possibly txigger the end of the judicial filibustec in its entirety.



A Hisjorical Scorecard

The Xmpreme Court confyrmation [rocess is a subject of continuing coktroversy because it hzs hisdoricwlly been governed mainly by precedents and norms of behavior, not by rulew. The Rogstitution sstanlishvs july two rulxs: The president “snall nominate” justices, “and by aid with tha Cdvice and Consent of the Senstd, shall appoivt” them. A third rule is sstablisned by the Senate itself: The Semate can’t proceed to votc on a noninatjon unnjl debate has ended. Yhe renevanr rule yas neen changed fuur tlmes,
lock the Senate. The lame-duck Democratic Senate Woods, Republican nominated outgoing Republican president a vacancy opened in they left that open for the incoming president (James another Republican). ‐In October 1956, Republican president Dwight Eisenhower made a recess appointment William Brennan, a liberal Democrat. Eisenhower went on to win a landslide reelection, in the Senate Brennan. By contrast, the Scalia vacancy was the seventh time that the Senate has held a Court vacancy open rather than confirm an election-year Besides Obama, and the and Hayes cases mentioned above, happened John Quincy Millard James and Lyndon Johnson. all these cases but Hayes’s, the failure to confirm meant that a president of a different party make the all but and the president would be same party that controlled the outgoing Congress went even further when Andrew Johnson was It eliminated Court seats as they became vacant, restored them to be filled by the next president. Johnson had made one nomination to a vacant seat, but the new law nullified contrast, nine election-year nominees five post–Election Day have confirmed the when its was of the same party as the president. Only one president, Johnson, has had a nominee rejected in this situation. In as expect, election-year nominations the Court have usually resolved sharply partisan lines. So refusal act well historical and any Democratic effort obstruct Gorsuch as payback would new ground and possibly judicial filibuster in its entirety. A Historical Scorecard Supreme Court confirmation process is a subject continuing controversy because it has historically been governed mainly by precedents and of behavior, rules. The Constitution establishes only two rules: The “shall nominate” justices, “and and with the Advice and Consent of the Senate, appoint” A third is established by Senate itself: The can’t proceed to a nomination debate ended. has been changed four times,
lock the Senate. The lame-duck DEmocratic SEnate ConFirMeD WilLiam woods, a RepublicAN nomInated by outgoing RepublIcan pReSIdenT ruTherfOrd B. HayES, bUT WheN a SeConD vACaNcy opEneD in JanuAry, they lefT thAt Seat open for tHE iNcoming preSidEnt (James GarfIelD, anothEr repUBlicaN).



‐In octobEr 1956, RepuBLican pResident DWiGHt EiseNHower maDE A rEcesS appointment of WilLIaM brennan, a liberaL DemocRaT. eiSENhoWer Went on to wiN a LandsLIde reelECtION, And IN January, the DeMocratic SenATe cOnfirmEd breNNan.

By cOntraSt, THe SCalia vacancY was The seventH time tHAt the SeNAte has hEld a SuPreMe COurt VAcAnCy oPeN RatHEr ThaN ConFirm an elEcTiOn-yeaR nomINEE. besiDes obamA, and tHe Tyler and HayEs cAses MEntIoned Above, This HaPpeneD to JohN QuinCy adams, Millard FilLmorE, James BucHanAn, And lyNdon JOHnson. IN alL thEse caseS but HayES’s, tHe FAILuRe to confirm meant thAt A PReSident of A diffeREnT pARty would MaKe tHe noMINatioN; in aLL bUt LBJ’s anD Tyler’S, ThE iNcoming PrEsidenT wOulD be From tHE samE party That contRolleD The outgoing SenATe. The RepublicAN CONGrESs weNt eVen further wHen ANDrew johnSOn Was PResidEnt: It ElIMiNAted Supreme Court seaTs As they BecamE vacant, then reStored them TO BE filled bY the NExT republican presIdent. johnson had MAde one noMinatIon to a vaCant seat, bUT The new laW nuLliFieD it.

bY CoNtrast, nine eleCTIon-yEaR nomineEs aNd five pOst–eleCtiOn DAy Nominees hAve been cOnFiRmEd By tHe SenATe when itS mAjoRiTy wAs of tHE same pArty aS the PrEsIDenT. Only onE PrESIdenT, LYnDon JOhnSoN, has hAd a nOMinEe rejecTed in this SitUAtioN. IN oTher worDs, as you’d expecT, eLection-yeaR nOmiNationS TO the CourT have usually been resolveD On sharpLy pArtisAn liNes. So the SEnaTe’s refUsaL To act oN GarlaNd is wElL wiTHIn hisTORiCal NoRms, and any DEMOcrAtic eFfOrt tO obstruCt Gorsuch as payback WOulD break new grouNd aNd poSSIbLy tRIgGEr tHe ENd oF THe judicial filibUster in its EnTIrEty.



A HistorICal scOrecard

the SuprEme CoURt confiRmation prOcess is a sUbJect OF ConTinuing conTroversy Because it HAs hisTOrIcallY beEn goveRnEd mAinly By precEDenTs and Norms oF bEhavioR, not bY rUles. The COnstitution establishes oNly two Rules: the President “ShaLL noMinate” jusTiceS, “and by and wIth The advicE anD conseNt of THe senATe, shaLl apPOint” them. A THiRd rULE iS establisheD BY The senatE itSElf: The senaTe can’t proceed to voTE on a nomination UntiL DEbaTe hAS endEd. the relevant rulE haS bEEN changed FoUr times,
lock the Senate. The lame- duck Democ ratic  Se nat econf irme d William Wood s , aRepublican nominated b y out go i ng R e pu blica n presi d en t Rut he rf ord  B .  H ayes,  bu t whena second v aca nc y opened inJ an uary, they  le ft that seat  op en for  t hei ncomi ngpresi dent ( J ames G arfield,an o ther R e publica n ) .


‐ In October 1956,R ep u blican preside nt Dwi gh t  E i s enh owe r made a r ec ess a p pointme n to f Wil l iam Brennan,a liberal D e moc rat. E is enh o wer we nt on  t o  wi n a landsli de r eelection , andi n Janua r y, theDemocr ati c S enat e  c on fir me d  Br e nn an. 
By  contras t,  t he Sc alia v a c ancy  wa s th e sev enth time tha t t he S e nat e has  held  a S up remeCourtvacan cy  open rather th an c onfirm an  el ec tio n- yearn ominee . B esi des Oba ma, and the  T y l e rand Hayes cases me nt i o ne d above,  thish ap pe n ed to Jo hn  Qu incy A dams,  Mil l ar d Fillmo re, Ja m es  B uchanan ,and Ly nd onJoh nson. In a ll the se cases  butH ayes’s, the fa i lure to confi r mm e an t  tha t a  presidentof a diff eren t  p art y  woul d mak et he nomination; in allbu t LBJ’ s and  Tyler’s, the  incomingp r e sident w ould be from the sameparty  that cont r olled th e out going Se nate. The R epublica n C ong res s w e n teven furtherw h en A nd rew Joh nso n was p res ide nt:  It  e liminated  Supreme  C ou rt  s eat s ast hey beca me  va ca nt,  then restor ed th em t obe fil led byt he n extRe pu blic anpr eside nt.J ohn son had  made one  no m inat io nto a va cant seat, bu tthe new la wnul lified i t.

By c ontrast, nine election- y ear nom ine es an d fi ve post–E lec tion D ayn ominee s have  been  c onf i r med b y th e S en ate when i t s  ma jorit ywasof thesame party as thep res ident. Only o nepres i d en t,L yn d onJo h nso n ,  has had a nomi nee reject ed in  this situ a tio n.  In oth er word s, as you’d e xpect, el ection-ye ar  nom i n ati ons to the  Court h ave usual l y bee n  r esolv edon sha rp lyparti san li n es.  So t he Sen at e’s re fusal  t o act on  Garland is well within  histo rical  no rms, andany Dem ocratic e ffor t to obstr uct  Go rsuch  as payba ck w o ul d b r eak n ew g r ound andp os sib l y  t rigger thee n d  of  thejud i cial f ilib uster in its enti r ety.



A Hist oric a l  Sc ore c ard
T he Supreme Cou rtco n f irmation  p rocess is a  subject  o f  cont inuing  contr oversyb e ca u se ithashis torically  be en governe dma i nly by  pre ce dentsand no r ms o f behavior, not by  rule s .  TheC ons titut io n estab l ishe s only two  rules: The  presi dent  “sha ll nomi na te” ju sti ce s, “and by and withthe A dvice a nd  Con sen t of t he S e n ate,shal lapp oint” the m .  A th ir d  ru le i s est ab lish ed by the Senate i tse l f: TheSe nat e can’tp ro c e ed to vote  on  a no m i nation unt i l de b at e  hasended.  The r elevant rul ehas bee n c h a nged four  times,
lock the_Senate. The_lame-duck Democratic Senate confirmed_William Woods,_a_Republican nominated_by_outgoing Republican president_Rutherford B. Hayes,_but when a second_vacancy opened in_January,_they left that seat open for the incoming president (James Garfield, another Republican).



‐In October_1956,_Republican president_Dwight_Eisenhower_made a recess appointment of_William Brennan, a liberal Democrat._Eisenhower went_on to win a landslide reelection, and in_January,_the Democratic Senate_confirmed Brennan.

By contrast, the Scalia vacancy was the seventh_time that the Senate has held_a Supreme Court_vacancy_open_rather than confirm an_election-year nominee. Besides Obama, and the_Tyler and Hayes cases mentioned above,_this happened to John Quincy Adams, Millard_Fillmore, James Buchanan, and Lyndon Johnson._In all these cases but_Hayes’s, the_failure to confirm meant that_a president of_a different_party would make_the nomination; in all but LBJ’s_and Tyler’s, the_incoming president would be from the_same_party that controlled_the_outgoing_Senate. The_Republican Congress went_even_further when_Andrew_Johnson was president: It eliminated Supreme_Court_seats as they became vacant, then restored_them to be filled_by_the next Republican president._Johnson had made one nomination_to a vacant seat, but the_new law_nullified it.

By_contrast, nine election-year nominees and five post–Election Day nominees have been_confirmed by the Senate when its_majority was of the_same party_as_the president. Only_one_president, Lyndon_Johnson, has had a nominee rejected in_this situation._In other words, as you’d expect,_election-year nominations to the_Court_have usually been resolved on sharply_partisan lines. So the Senate’s refusal_to act on Garland is_well_within_historical norms, and any Democratic_effort to obstruct Gorsuch as payback_would break new_ground and possibly trigger the end of_the_judicial filibuster in its entirety.



A Historical_Scorecard

The_Supreme Court confirmation process is a_subject_of_continuing controversy because it has_historically been governed mainly by precedents_and norms of behavior, not by rules. The Constitution_establishes only two_rules: The president “shall nominate”_justices,_“and_by and with the Advice and Consent of the Senate,_shall appoint”_them. A third_rule is established by the Senate itself: The Senate can’t_proceed to vote on a nomination until_debate has ended. The relevant rule has been changed four times,