slatten49 Loc: Lake Whitney, Texas

During his press conference today, P**********l spokesman Sean Spicer claimed there had never been a supreme court justice appointed in a president's last year. He was clearly in error. This is not to that say that the U.S. Senate didn't have the constitutional right to block Merrick Garland's nomination, just that Mr. Spicer either needs to hone up on the history of SCOTUS nominations/appointees or, be honest. Otherwise, it seemed clearly another example of partisan/ideological obstructionism shamelessly practiced by both parties.
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A history of Supreme Court nominations in e******n years, from A March of Liberty: A Constitutional History of the United States

By Paul Finkelman, February 22nd 2016

It was an e******n year. A Supreme Court justice appointed by the most conservative Republican president in history had just died. The President, the most progressive Democrat to ever hold that office, now had a chance to begin to reshape the Supreme Court. But the president was up for ree******n, with no guarantee he would be reelected. Indeed, in the previous 76 years only two presidents had been elected to two consecutive terms.

The President nominated a famous but controversial public interest lawyer to the Court. He was known for taking on insurance companies, powerful public utilities, and banks. His book, Other People’s Money and How the Bankers Use It, hardly endeared him to Wall Street. On top of all this, he was an ethnic minority and the first person of his background to be nominated to the Court.

The Republicans in the Senate were furious. They hoped the nomination would fail, and they held endless hearings trying to undermine support for this man they accused of being a radical, a socialist, and on top of that, “greedy.” But no one in the Senate thought the President should not fill a vacant seat on the Court in an e******n year. After a four month confirmation process—the longest in our history—the confirmation took place.

The year was 1916. Exactly a hundred years ago. The President was Woodrow Wilson. The nominee was the great progressive lawyer Louis D. Brandeis—the first Jew on the Court at a time of rampant anti-Semitism—who went on to be one of the most important and influential Justices in our history.

The death of Justice Antonin Scalia has led to political posturing by leaders on the process of his replacement. Senator Ted Cruz has argued that President Obama has no right to nominate a successor to Scalia, and the Texas politician—and p**********l hopeful—has promised to filibuster any nomination. Senator Majority Leader Mitch McConnell has vowed to prevent the nomination from reaching the floor.

These responses, while perhaps politically predictable, run counter to the entire history of the United States. The Brandeis confirmation took place five months before a p**********l e******n, in June 1916. During the long confirmation process—from January to June—no one argued that President Wilson should not have sent a nomination forward, or that the Senate should not have acted on it. In the end, the opponents of Brandeis failed to stop his confirmation. One of those opponents, ex-President William Howard Taft, later came to admire and respect Brandeis when Taft himself joined the Court.

Brandeis is hardly the only justice to be nominated and confirmed in an e******n year. In January 1796 George Washington nominated Samuel Chase to the Court. By this time Washington had indicated he would not run for a third term, but no one in the Senate suggested the nation needed to wait more than a year to replace Justice John Blair, who had recently retired.

Between January 1844, an e******n year, and February 1845, President John Tyler nominated four men to a vacant seat, but none were confirmed. This was not a result of Tyler being in the last year of his term or his lame duck status after November 1845. Rather, the Senate simply did not think his nominees were up to the job. But in mid-February 1845—with less than a month to go in his lame duck term—President John Tyler nominated Samuel Nelson to the Court, and he was confirmed in ten days.

In December 1851, eleven months before the next p**********l e******n, Millard Fillmore sent the name of Benjamin R. Curtis to the Senate, and he was confirmed nine days later.

In December 1880, with only a few months to run in his term, the lame duck President Rutherford B. Hayes nominated William B. Woods to the Court. The Senate quickly confirmed him, with no one arguing that the seat should remain open for president-elect Garfield to fill. In July 1892, four months before the 1892 e******n, the Senate confirmed Benjamin Harrison’s nominee George Shiras. Harrison then lost his bid for ree******n in 1892, but in February 1893, less than two weeks before he was to leave office, the Senate confirmed his last nominee, Horace Jackson. In March 1912, less than eight months before the p**********l e******n, the Senate confirmed President William Howard Taft’s nominee Mahlon Pitney.

We have already noted that President Wilson nominated Louis Brandeis in an e******n year. But a month after the Brandeis confirmation, in July 1916, the Senate confirmed Justice John H. Clarke, Wilson’s second e******n year nomination.

In 1932, in the depths of the Great Depression, Herbert Hoover was about as unpopular as a president could be. That fall he would be overwhelmingly defeated for ree******n. By July he was already, for any meaningful purpose, a lame duck. But the Senate confirmed without much hesitation the nomination of Benjamin Cardozo. In the e******n year of 1940 the Senate confirmed Frank Murphy.

In 1987, less than a year before the next p**********l e******n, Ronald Reagan sent Anthony Kennedy’s name to the Senate. In February 1988, less than nine months before the p**********l e******n, the Democratic majority confirmed him, even though at the time many observers expected the Democrats to win the next p**********l e******n. Justice Kennedy remains on the bench today. One wonders if Senators McConnell and Cruz believe Ronald Reagan should not have been allowed to nominate a justice just a few months before he was scheduled to leave office.

There have been three chief justices confirmed in an e******n year. In 1796, even though he was not planning on running for a third term, George Washington nominated Oliver Ellsworth to be Chief Justice, and the Senate confirmed him. In 1888, just a few months before he would lose his bid for ree******n, President Grover Cleveland sent Melville Fuller’s name to the Senate, and he quickly became Chief Justice.

The most important lame duck nomination–even more important than Brandeis– was John Adams’s “gift” to the American people: John Marshall, who is universally considered our greatest Chief Justice. To this day much of our constitutional history and constitutional law focuses on his landmark opinions.

The Marshall nomination came after Adams had been defeated for ree******n. But on 27 January 1801, about five weeks before the new president was to take office, the Senate confirmed Marshall by a voice v**e, as was the custom of the time. No one suggested that Adams should not fill the office. No one doubted Adams’ obligation to nominate someone for the office, and no one doubted the Senate’s obligation to consider the nomination.

The history of Supreme Court nominations is clear. Until this past week there has never been a suggestion that a sitting president does not have the power to nominate someone for the Court and that the Senate does not have an obligation to consider that nomination. If past Senates had followed the proposals of Senators McConnell and Cruz, then significant justices, including the current Justice Anthony Kennedy, would never have been confirmed. The Supreme Court would have been shorthanded at many crucial moments in our history.

Should Senator Cruz become president, does he want to be told that for the last 25% of his term he will not have the right to fill a seat on the Supreme Court? Is he ready to make a campaign pledge, that if elected he will not nominate anyone to the Supreme Court in the last year of his term?

Senators Cruz and McConnell, and some of their colleagues, insult the memory of presidents from George Washington to Ronald Reagan when they argue that a president should not be able to fill court vacancy during the last year of his term. Is this the legacy these Senate leaders want to have? Perhaps it is time for them to read some history.
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Paul Finkelman is the co-author of A March of Liberty: A Constitutional History of the United States and American Legal History: Cases and Materials, and the co-editor of Documents of American Constitutional and Legal History. He was the editor-in-chief of the eight-volume Oxford Encyclopedia of African-American History. He has published more than 40 books and more than 200 scholarly articles. The United States Supreme Court has cited his work in four different cases. Professor Finkelman is currently the Ariel F. Sallows Visiting Professor of Human Rights Law at the University of Saskatchewan College of Law.

Docadhoc Loc: Elsewhere

I believe it more likely that Spicer was simply mistaken.

With this history clearly available and simple to look up, it seems senseless to knowingly make a statement so easily refuted.

My guess is he heard someone make this statement and thought they knew what they were talking about and simply repeated it. Or he may have heard them incorrectly.

Regardless, my feeling is if enough people complain loudly enough over such comments that make no difference, he will be more cautions and clam up unless he is more certain of his facts.

Some do not care for the way he handles the MSM. if this controversy happens.
a few more times over trivialities these complainers will have more to complain about as he clamps down further.

robmull Loc: florida

It's one of the first "Rules," in "red-(D)iaper baby," Saul Alinsky's liberal progressive blueprint for "o*******wing the enemy, America," Saul's, "Rules for Radicals." There are liberal progressive "think tanks," {that work 24/7/365}, to catch conservative Constitutionalist, patriotic Republicans {mostly out-of-context} "non-teleprompted" statements that may be either "spun," or "mistaken;" and NEVER let-up on pointing-it-out, in HEADLINES, 24/7/365. "WE" see, that the "liberal" ideology is supposed to make "mistakes," or they would actually be conservatives. Hummmmmmmmm. What's that "crushing" noise I keep hearing??? GOOOOOOOOOOOOOOOOOOO PRESIDENT "45" DONALD J. TRUMP!!!

slatten49 Loc: Lake Whitney, Texas

Docadhoc...I would agree with your assessment as being reasonable and fair. Spokesmen for all administrations have almost a thankless job, and are not only often tripped up over facts, but usually excoriated by the press. I have yet to hear this brought up by the press corps. But, I am no academician, and was well aware of the history of SCOTUS nominations/appointments. I suspect he will, as you suggest, acclimate to the job with better pr********n and/or more cautious remarks.

slatten49 Loc: Lake Whitney, Texas

Robmull, often, I am amused by your standardized postings and inimitable style. One could visualize a rubber stamp being used for entering your usual, predictable and suspect comments.

Boo_Boo Loc: Jellystone

I agree, I think it was a very human mistake. I can see how it could happen, after all look how often it is done right here on OPP. Many do not take time to research the articles they cut and paste.... thinking that the author did due diligence. And indeed the media does the exact same thing, they read a copy from another news then they print it in their own news, and the story takes hold and spreads... this is how f**e news gets around the globe in an hour. I can hope that Sean Spicer has now learned a valuable lesson.... trust but verify.

How interesting that Justice Louis Brandeis is the one who proves Sean to be less than up to speed on his information.... for he is the one who is quoted as saying: "Behind every argument is someone's ignorance."

slatten49 Loc: Lake Whitney, Texas

Nicely pointed out, Pennylynn.

Mark Twain had an applicable saying..."Education consists mainly of what we have unlearned."

Also, from William F. Buckley..."T***h is a demure lady, much too lady-like to knock you on your head and d**g you to her cave. She is there, but people must want her, and seek her out."

Boo_Boo Loc: Jellystone

I am sure that this somehow pertains to the mistake that Sean made, but I am at a loss. Or are you saying that my comment was germane to your thread? Or perhaps you are implying that I have somehow spread a falsehood? Or are you saying that I am uneducated? Is it that you just enjoy quoting famous people? Or is it that you took my quote from Brandies as a personal attack on your article, if that is the case it was not my intent... but rather a comment on how bad information is spread and treated as gospel.... Regardless, I apologize for commenting to Doc on his comment. So, you see we all make mistakes and mistakes are forgivable it is only when one repeats the same mistake that it becomes a habit. We shall see if Sean learns or if this is indeed a habit as was the case with Jay Carney. But, I recall not many heads spun around on his..... shall we call them poorly researched press releases.

slatten49 Loc: Lake Whitney, Texas

I am not your enemy nor am I your adversary, Pennylynn. I believe Spicer's error was relevant in that he used the supposed point to justify republican obstruction of Merrick Garland's nomination...one that never even made it to hearings. That hadn't happened since 1875.

If you had waited a moment later you might have noticed the additional, albeit late, comment I added to my post. I thought yours was right on target, and I posted two quotes that I felt pertained to seeking the t***h, instead of...as you pointed out, falling for idle gossip or false information. I meant no offense to you. And, yes, I do enjoy posting pertinent quotes from anyone that makes an intended point clearer.

I will dismiss the implications of your poster message.

Ricko Loc: Florida

Slatten-to be PC should he have said that it has not happened in the last 99 years ?? Would that satisfy the nit pickers ?? lol America First !!!

slatten49 Loc: Lake Whitney, Texas

Ricko, did you not read the entire article? Reagan was the last president to appoint a SCOTUS nominee less than a year before an e******n, and before Obama with Garland. If you read the whole article, you would also discover his nomination and appointment of Anthony Kennedy was not the only one since Wilson's nomination of Brandeis. Both Hoover and Roosevelt nominated/appointed justices in an e******n year. This has nothing to do with political correctness, but with the correction of a stumble in one's knowledge of history. Obstructionism by both parties is a fairly new aspect of American politics.

Boo_Boo Loc: Jellystone

I really like that poster, it says so much, but in this case I used it to punctuate my attitude toward main stream media, they are so quick to nitpick everything that our President or his se******ns say or do, they are missing the big picture.

I can say that I feel that our President's pick Neil Gorsuch is an excellent choice. I hope that he will be passed quickly and I hope that our President will nominate the next one with the same type of attributes.

Ricko Loc: Florida

Slatten-I stand corrected-missed that part-read it as 1897 vs 1987. My Error !! America First !!!

slatten49 Loc: Lake Whitney, Texas

I think Gorsuch is highly qualified, as certainly was Garland. I suspect, because of the treatment Garland received in being denied even a hearing, that Gorsuch will face seriously staunch filibuster opposition. Because of the history of SCOTUS nominees requiring a minimum of 60 v**es after filibuster, rules would have to be changed for a nuclear option being used. The following is from Wikipedia.....

'The nuclear or constitutional option is a parliamentary procedure that allows the U.S. Senate to override a rule or precedent by a simple majority of 51 v**es, instead of by a super-majority of 60 v**es. The presiding officer of the United States Senate rules that the validity of a Senate rule or precedent is a constitutional question. They immediately put the issue to the full Senate, which decides by majority v**e. The procedure thus allows the Senate to decide any issue by majority v**e, even though the rules of the Senate specify that ending a filibuster requires the consent of 60 senators (out of 100) for legislation, 67 for amending a Senate rule. The name is an analogy to nuclear weapons being the most extreme option in warfare.

In 1917, a threat to use what is now known as the nuclear option resulted in reform of the Senate's filibuster rules. An opinion written by Vice President Richard Nixon in 1957 concluded that the U.S. Constitution grants the presiding officer the authority to override Senate rules. The option was used to make further rule changes in 1975. In November 2013, Senate Democrats used the nuclear option to eliminate filibusters on executive branch nominations and federal judicial appointments other than those to the Supreme Court.

Before November 2013, Senate rules required a three-fifths v**e of the "duly chosen and sworn" members of the Senate – (usually 60 v**es) to end debate on a bill, nomination or other proposal; they also require a two-thirds v**e ("present and v****g" – 67 or fewer v**es) to end debate on a change to the Senate rules. Those rules effectively allowed a minority of the Senate to block a bill or nomination through the technique of the filibuster. This had resulted in a de facto requirement that a nomination have the support of 60 Senators to pass, rather than a majority of 51. A three-fifths v**e is still required to end debates on legislation and Supreme Court nominations.

In most proposed variations of the nuclear option, the presiding officer would rule that a simple majority v**e is sufficient to end debate. If the ruling is challenged, a majority would be required to overturn it. If the ruling is upheld, it becomes a precedent. This would end what had effectively become a 60-v**e requirement for confirmation of an executive or judicial nominee, or the passage of legislation.'

Time will tell what happens, but I'm guessing it won't be pretty.

slatten49 Loc: Lake Whitney, Texas

Hey, Ricko, I've had more than my fair share of oversights and errors. We're all human...with the exception of AuntiE, an anomaly of extraordianry proportions. She has P-O-W-E-R-S