Saturday, January 21, 2017

President* Trump's Coming Supreme Court Nomination

Mark Tushnet

We now know that conventions/norms about Supreme Court nominations are fluid (perhaps -- I hope to write something about this later this semester -- this occurs in times of regime instability/transition). We also know that politicians need to justify departures from existing norms by invoking some general principle ("no nominations in the final year of a second-term president"). So, here's a principle for Senate Democrats, at no charge: For more than 125 years, the Senate has not confirmed a Supreme Court nominee chosen by a president who lost the popular vote.

(George W. Bush didn't nominate anyone during the term resulting from his popular vote loss; the last time such a nomination occurred was in 1893 -- by Benjamin Harrison, who was already on his way out of the Presidency [Howell Jackson -- remember him? -- was nominated on February 2, 1893 and took his seat on February 18; Grover Cleveland took office for the second time on March 4, 1893]. And, though Harrison was a Republican, he nominated Jackson, who had been a Democrat when he served in the House of Representatives.)

What are the conditions for taking this "principle" seriously?

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