Does the Senate have a constitutional responsibility to consider a Supreme Court nomination? Fact Check Again


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“Fact checker” Glenn Kessler published an article in The Washington Post (WaPo) vaguely declaring “Three Pinocchios” for the idea that the Senate has a duty to provide “advice and consent” for the president’s Supreme Court nominees. In other words, he called the whole idea a big lie.

Aside from the obvious absurdity of awarding comic-like “pinocchios,” the quality of the article comes up sorely lacking.  What appears at first to be a scholarly and objective article is nothing of the sort.

Glenn Kessler’s “fact checker” article is about to be fact checked right here; and  he will be stuck with his own “pinocchios” for errors and omissions. This is going to be painful.

The Facts

Glenn Kessler laments that “there are relatively few examples” of Supreme Court nominations.  He continues:

Even more unusual is an instance when the presidency is held by one party and Senate is held by an opposing party.

does-the-senate-pinocchio-1Pinocchio. There is no “opposing party” exception in the Constitution. He has the wrong premise.

Though the examples are few, they tend to support the right of Republicans to handle — or not handle —this nomination as they wish.

does-the-senate-pinocchio-1Pinocchio. There is no “right” to handle. There is a duty to provide “advice and consent.” Providing “advice and consent” is providing “advice and consent,” not handling a “nomination as they wish.” Technically, they can do what they want, but the Constitution says what they are supposed to do.

But he is correct when he talks about “Republicans.” 19 Republicans insisted they would not consider a Democratic nomination no matter what in 1968. Glenn Kessler would like us to believe that this minority of Senators set a precedent, and he would like to use this minority of outlier Republicans against Democrats as a sword against Democrats again.

Glenn Kessler goes into selected detail for three examples to reach his conclusion supporting “the right of Republicans.”

1828 Example.

John Quincy Adams was appointed to the presidency after losing both the popular and electoral votes. This example applies to this unique situation.

In August 1828, Justice Robert Trimble died just as President John Quincy Adams …

As Glenn Kessler correctly points out, the vacancy occurred just before the 1828 election, the nomination was made after the election, and the Senate debated the issue for nine days and took two votes upon it. These facts are all different from the  current Antonin Scalia situation.

Supporters of Adams’s maneuver …

does-the-senate-pinocchio-1Pinocchio. A president nominating a Supreme Court Justice is not properly described as a “maneuver” — it is more specifically and objectively described as — a nomination.  The word nomination cannot be perceived as deceptive or manipulative, but the vague word “maneuver” can be.

Glenn Kessler then publishes a hanging quote for a resolution that would have established a precedent for “the duty of the Senate to confirm or reject the nominations.” The Senate voted against this amendment 17-23, so no precedent was established by it.

Glenn Kessler then quotes from another amendment:

Senate voted 23-17 to adopt an amendment saying “that it is not expedient to act upon the nomination of John I. Crittenden.”

does-the-senate-pinocchio-1Pinocchio. This time, Glenn Kessler conveniently does not publish the entire amendment. The Senate did not establish a rule or precedent disavowing the duty to “advice and consent.” Part of the quote was left out conveniently.  Here is the entire amendment.

Resolved, That it is not expedient to act upon the nomination of John I. Crittenden, as a Justice of the Supreme Court of the United States, until the  Senate  shall  have  acted  finally  on  the  report  of  the  Judiciary Committee, relative to the amendment of the Judicial System of the United States.

The Senate said, quite specifically, that this particular nominee at this time would not receive a vote until after the judicial committee gave its recommendations about system changes. Glenn Kessler also failed to point out that the committee was considering a reduction in the number of Supreme Court Justices which would make any nomination invalid. No precedent was established here either. Finally, the Senate did in fact debate the candidate.

1844 example.

John Tyler, was not running for reelection,…

does-the-senate-pinocchio-1Pinocchio. John Tyler was never elected in the first place. He could not be re-elected even if he were running. He was the first president in American history to be appointed as a successor to the position. He was widely despised and nicknamed “Your accidency.”

Tyler made nine Supreme Court nominations during his presidency, but only one was approved.

does-the-senate-pinocchio-1Pinocchio. Nine nominations sure sounds like lots of denials, but there were only two vacancies. One was filled. One was not.  As described in an earlier report:

Finally, on February 14, 1845, long after the election, the Senate approved nominee Samuel Nelson.

The approval of a nominee after the election proved the Senate was willing to provide “advice and consent.” The shortcoming was caused by the timing and quality of nominations by unelected John Tyler — not upon some blanket rule.

1852 example.

During the 1852 campaign between Democrat Franklin Pierce and Whig Winfield Scott, Justice John McKinley died in July… Millard Fillmore, a Whig who was not running for reelection, nominated three candidates …

does-the-senate-pinocchio-1Pinocchio. Gross distortion: Millard Filmore was not running for election because he lost the nomination by the time the vacancy occurred. Also, it should be mentioned that the 2016 vacancy occurred in February, more than five months earlier than the 1852 vacancy.

does-the-senate-pinocchio-2Pinocchio. Millard Filmore was not elected in the first place. Pinocchio’s nose grows an inch for using the same distortion again.

Democratic-controlled Senate took no action on two candidates and the third withdrew after the Senate postponed a vote until after inauguration.

Not exactly. One of those candidates received Senate debate after the 1852 election, then it was postponed. This is more consideration than some are offering in the current situation — a situation which involves an elected two-term president, popular within his party, and an earlier vacancy and nomination, who is being told by some that there should be no consideration whatsoever.

Exception to the rule.

After pointing out the above three examples of the rule, Glenn Kessler says, “And there is always an exception to the rule.” He then lists three ‘exceptions.’

does-the-senate-pinocchio-2Pinocchio. If there are three supposedly one way and three the other, one group is not an exception to the other. They are equal alternatives.

Glenn Kessler then points out that two of those so-called exceptions “occurred when the presidency and the Senate were controlled by the same party.”

does-the-senate-pinocchio-3Pinocchio.  As previously stated, There is a duty to provide “advice and consent.” The nose grows another inch for this redundant bad claim. There is also no “controlled by the same party” rule in the Constitution. It is understandable that an opposition party would be less likely to confirm a nominee, but this is no excuse to deny all of “advice and consent.”

1968 example.

To break the three-three tie he created, Glenn Kessler provides one more example to try to support his conclusion.

The most recent and perhaps relevant example is Lyndon B. Johnson’s 1968 nomination of Abe Fortas, at the time an associate justice, to be chief justice. Earl Warren in June had announced he would retire and wanted to make sure Johnson had a chance to nominate his replacement.

It is also “relevant” that  (1) Abe Fortas was already on the Court so there was no actual vacancy, unlike today where the Court is short a member, and (2) Earl Warren was gaming his resignation to control the nomination, unlike today where Antonin Scalia did not choose to vacate the seat. The current situation is very different.

Perhaps hoping that readers decide not to finish the article, Glenn Kessler eventually admits that his “perhaps relevant example” is not very relevant at all. As described in the earlier report:

Abe Fortas was called to testify before the Senate. After hearings, his nomination was blocked for at least three reasons. (1) Many Senators from both parties did not support his Constitutional views. (2) He had collected large speaking fees from private interests. (3) A minority of 19 Republican Senators refused to consider his nomination against the wishes of Republican presidential candidate Richard Nixon. 19 does not set a precedent.

Considering the deliberate manipulation of the succession process, the lack of a vacant seat at all, and all these other things, the 1968 example is virtually nothing like the current absolute refusal to provide “advice and consent.”

does-the-senate-pinocchio-3One last Pinocchio. Glenn Kessler never even mentions the 1800 election where a nominee was named by the outgoing loser of the election after the election — arguably the greatest Supreme Court Justice in history, John Marshall — and was approved. A Supreme Court case then validated the “lame duck” appointments.

The Pinocchio Test.

does-the-senate-pinocchio-4In the end, the entire Glenn Kessler article is a big fat opinion piece full of pinocchios with six inch noses — a partisan argument designed to lead readers to a conclusion that would not follow from a proper review of complete and objective facts. That’s called “fact checking.”


Picture from here