The Supreme Court bench where Justice Scalia once sat is draped in black

Supreme Court Appointment Should Wait

The death of Supreme Court Justice Antonin Scalia has led to a campaign by Democrats to bully Republicans into considering whomever the president nominates to fill the vacancy. Republicans should reject such pressure. The Constitution and historical precedent make clear that the Senate is under no obligation to consider the president’s nominee.


The Senate has no obligation, implied or explicit, to act on a president’s judicial nomination. The Constitution says that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint” judges. This imposes a duty on the president, not on the Senate. The Constitution requires the Senate to take action only if it chooses to consent to a nomination.

Imposing a requirement that the Senate vote to reject a nominee, as Democrats are advocating, would reverse the system the framers of the Constitution designed. In fact, the framers considered a proposal that would have required a majority vote of the Senate in order to stop, rather than approve, a nomination. The constitutional conference rejected this proposal in favor of a system that placed the presumption against a nominee. Democrats should not be able to reverse this design now and weaken a critical check on the president’s appointment power.

Historical practice also supports the absence of any duty to act on a nominee. The Senate regularly ignores judicial nominations, allowing them to expire at the end of the Congress, especially in the last year of a president’s term. The majority of Reagan’s, Clinton’s, and Bush’s circuit court nominees were ignored by the Senate in the final year of their presidencies. More than 75 percent of Bush’s circuit court nominees never even received a hearing in 2008. This is common practice, not a constitutional violation.

Most circuit court nominees are ignored during a president’s 8th year


While some Supreme Court nominations have been confirmed in election years by Senates controlled by the same party as the president, it has been 128 years since a Senate controlled by the opposing party confirmed someone who was nominated in an election year. The last time the Senate did what Democrats are currently demanding, there were only 38 states in the union and senators were still chosen by state legislatures.

Democrats may pretend that not acting would be unprecedented, but it is nothing more than what Senator Schumer promised in 2007. Sixteen months before the next presidential election, he declared: “[F]or the rest of this president’s term … I will recommend to my colleagues that we should not confirm a Supreme Court nominee except in extraordinary circumstances.”

The Schumer standard should apply today. The Supreme Court is the final word on some of the most critical and divisive challenges confronting our country. With a vacancy occurring so soon before a national election, the Senate has the unusual opportunity to pause and give the American people a direct voice in the selection of the next justice.


With one seat on the Supreme Court vacant, the court will continue to hear and decide cases with eight justices. For any case in which Justice Scalia had voted before his death but the decision was not publicly released, his vote will be voided, and the opinions he was writing will be redistributed to other justices.

As most Supreme Court cases are decided with a majority of six or more votes, the vacancy will not alter the outcome of many cases. However, Justice Scalia’s death does create the possibility of a 4–4 split in some of the most controversial cases. In these instances, the court will release a judgment affirming the lower court’s decision without a written opinion, and the judgment will not create any binding precedent. The court could order re-argument to resolve a split once a new justice is appointed, as it has done in the past.

The high profile cases most likely to split 4–4 are:

Immigration Executive Action: If the court is evenly split in deciding the challenge to the president’s executive amnesty program in the case United States v. Texas, the lower court’s stay of the executive action will remain in place while the case returns to the district court for further litigation. This would almost guarantee that the president would be unable to implement his amnesty program before the end of his term.

Mandatory Union Fees: In Friedrichs v. California Teachers Association the court is set to decide whether public sector workers can be forced to pay mandatory union dues. Many anticipated that the court was going to overturn a 1977 Supreme Court decision upholding such fees, but now that precedent will likely remain in place.

Restrictions on Abortion Facilities: In Whole Woman’s Health v. Hellerstedt, the court will decide whether a Texas law imposing restrictions on abortion facilities and doctors is constitutional. The Fifth Circuit had ruled that the state law is constitutional. With a 4–4 split on the Supreme Court, the restrictions would remain in place.

Obamacare Contraceptive Mandate: The challenge to the Obama administration’s contraceptive mandate in Zubik v. Burwell is also likely to lead to a split court. However, Zubik is the consolidation of seven different cases. Six of these upheld the contraceptive mandate, and one held that it violated the Religious Freedom Restoration Act. A split Supreme Court would result in conflicting rulings being upheld in different circuits. As a result, the administration would likely continue to enforce the contraceptive mandate until it was repealed by a new president or the issue was re-argued before a full court.

Affirmative Action in University Admissions: Things could also get complicated in Fisher v. U.T. Austin, the case challenging the constitutionality of racial preferences in undergraduate admissions programs. Justice Kagan has recused herself due to her participation as solicitor general in an earlier iteration of the case. This leaves only seven justices to decide the case. If the court fails to reach a five justice majority, splitting 4–3, it is unclear what weight the decision would carry in the future.

Give the People a Voice

“…it would be our pragmatic conclusion that once the political season is under way, and it is, action on a Supreme Court nomination must be put off until after the election campaign is over.” — Joe Biden, 1992

Senate Republican Policy

Written by

The Senate Republican Policy Committee helps shape policy and provides legislative analysis.

Give the People a Voice

“…it would be our pragmatic conclusion that once the political season is under way, and it is, action on a Supreme Court nomination must be put off until after the election campaign is over.” — Joe Biden, 1992

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