Even Lincoln and Eisenhower Would Disapprove of Trump's SCOTUS Rush | Opinion

When Justice Antonin Scalia died in February, 2016, the Republicans famously said his seat could not and would not be filled in an election year because the American people should have a voice through their vote. "The best way to ensure that happens is to have the Senate consider a nomination made by the next president" said Senator Majority Leader Mitch McConnell. In fact, 15 Supreme Court vacancies occurred in an election year prior to the death of Justice Ruth Bader Ginsburg. Eleven of those occurred in June or earlier, three occurred in July or August, and one in October just 27 days before the election. Nominations were made before the election for all of the vacancies that occurred prior to July, but no nominations were made before the election for the vacancies that occurred after June. Of the eleven vacancies that occurred before July, only six nominees were confirmed before the election. Two other nominees received a vote prior to the election but were not confirmed. All of the remainder—seven of the fifteen—were either nominated, confirmed, or rejected after the election.

Perhaps the most famous case was the death of Roger B. Taney, 27 days before the election. President Lincoln did not nominate his successor until he was re-elected in an election that also increased the Republican majority in the Senate by four votes. He then nominated Salmon P. Chase, who was confirmed prior to Lincoln's second inauguration. The only other pre-election nominee, Justice William Brennan, was not confirmed until after the second inauguration of President Eisenhower. In both of these cases, the president who made the nomination was re-elected to a second term by the voters.

Why is this time different than 2016 when Majority Leader McConnell refused to schedule hearings on President Obama's March 16th nomination of Judge Merrick Garland, much less allow a vote by the Senate? President Trump and a number of Republican Senators claim that the difference is that the President and the Senate are now controlled by the same party, whereas in 2016 the President and the Senate were controlled by different parties. But this explanation makes no sense. Had the Garland nomination been put to a vote in the Senate it could have voted him up or down as it saw fit.

The real difference, as the historical record shows, is that the forthcoming nomination will be announced only 38 days before the close of the election. The election is already well underway in many states across the country, particularly because of the pandemic. Early in-person voting is now taking place in nine states, and will shortly begin in many more states. Absentee or mail-in voting is also underway in twenty-eight states with more to come in the days ahead. The election will determine the people's choice for the presidency as well as for the House and the Senate. The other difference, of course, is that the President who nominated Judge Garland was not a candidate facing the electorate. The current President is. He should not be permitted to use the selection of a Supreme Court Justice as just another campaign slogan.

The federal courts, also known as the third branch, have always been different from what are known as the political branches. Judges are not elected by the people. They are not running as partisans, they don't campaign or raise money, and do not generally appeal to the electorate by espousing policies or positions. This appears to be changing. President Trump has repeatedly told the American people that Roe v. Wade will be overturned because unlike President George W. Bush he will be sure to appoint a justice to the Court who will make it happen. President Trump has also said that Congress must confirm his choice of a justice before the election is complete because he apparently believes that this election will be decided by that Court. In short, the President predicts that he cannot win this election without a court in his corner.

The Supreme Court will shortly decide other cases that will affect the lives of millions of Americans such as the potential demise of the Affordable Care Act, voting rights, and attacks on a woman's right to choose. Even sooner, the Court may be asked to determine whether the census can be ended before it is complete and whether challenges to voting restrictions in many states are constitutional. All of these issues are of the utmost importance to voters. They are entitled to rely on an independent judiciary free from political influence. There is a reason that confirming a Supreme Court justice has never before occurred as voters were actively casting ballots in the general election. What was good for Presidents Lincoln and Eisenhower should be good enough for President Trump.

Shira A. Scheindlin who served as a United States District Judge in the Southern District of New York from 1994-2016 and now serves as the Co-Chair of the Board of the Lawyers' Committee for Civil Rights Under Law. Kristen Clarke is the President and Executive Director of the Lawyers' Committee for Civil Rights Under Law. She can be followed @KristenClarkeJD.

The views expressed in this article are the authors' own.