staff would tell him that his instincts were correct. There had been only three confirmations in the final year of a presidency when the opposing party controlled the Senate, most recently in 1888, when Grover Cleveland nominated Melville W. Fuller to be chief justice.
President Obama’s own vice president, Joseph Biden, had given a floor speech in June 1992 when he was chairman of the Senate Judiciary Committee and George H. W. Bush was running for reelection, arguing that presidents should not try to fill a vacancy on the Supreme Court once campaign season was underway but should follow the example of “a majority of [their] predecessors” and wait until the election is over. Even if such a nomination were made, it should not be considered, as “Senate consideration of a nominee under these circumstances is not fair to the President, to the nominee, or to the Senate itself.” Instead he suggested that the Senate Judiciary Committee should wait to schedule nomination hearings “after the political campaign season is over.”1
Democrats took the same stance during George W. Bush’s second term. A full eighteen months before that term ended, Senator Charles Schumer of New York declared that, absent “extraordinary circumstances,” no Supreme Court nominee should be confirmed if a vacancy arose while Bush was still president.2
Within an hour of the news of Scalia’s death, McConnell announced that the vacancy would not be filled until after the election of 2016 and that President Obama should not bother with a nomination. “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new President,” McConnell said.3
McConnell’s speed in releasing the statement was intentional. He knew Scalia’s death was major news, and most of the fifty-four Republican senators, home for a week-long recess, would be peppered with questions about what they thought should be done. Contradictory statements from various Republican senators would breed confusion. He also believed that confirmation hearings would be both politically riskier and less respectful to the nominee. By refusing to consider anyone to fill the vacancy, McConnell would spare a nominee unnecessary criticism of his judicial opinions and philosophy. Despite their earlier position, Democrats were livid with McConnell’s stance, and their reactions led news coverage for days.
Notwithstanding McConnell’s preemptive statement, the politically vulnerable Republican Mark Kirk of Illinois called for Senate hearings.4 Senator Jerry Moran of Kansas also briefly supported a hearing on an Obama nomination, but he reversed himself in the face of a furious backlash.5 When President Obama eventually nominated Judge Merrick Garland for Scalia’s seat, Maine’s Susan Collins told reporters she was “more convinced than ever that the [confirmation] process should proceed,” but she was “not optimistic that I will be changing minds on this issue.”6 Senator Jeff Flake of Arizona at one point encouraged Republicans to consider Garland’s nomination after the election and before newly elected senators took their seats.7 Still, McConnell’s statement proved remarkably effective at keeping Republican senators from announcing that they looked forward to a confirmation battle.
Chuck Grassley, the senator in charge of judicial confirmations, was in his home state of Iowa at the time of Scalia’s death. It had snowed, and true to his reputation as a self-sufficient farmer, the octogenarian was shoveling his driveway, so he missed the numerous phone calls from his staff trying to alert him to the news. He first heard of Scalia’s passing from a Des Moines Register reporter who called him for comment. He demurred when asked what the next steps would be, but within hours he released an official statement that noted the futility of making a nomination. Ultimately, the decision whether to hold hearings on a nominee would be Grassley’s, and he was typically blunt:
The fact of the matter is that it’s been standard practice over the last nearly 80 years that Supreme Court nominees are not nominated and confirmed during a presidential election year. Given the huge divide in the country, and the fact that this President, above all others, has made no bones about his goal to use the courts to circumvent Congress and push through his own agenda, it only makes sense that we defer to the American people who will elect a new president to select the next Supreme Court Justice.8
Grassley’s position was politically riskier than McConnell’s. He was in a reelection campaign himself, and polls suggested that two-thirds of the country thought his committee should hold hearings on a nominee. The New York Times