History and recent trends are on their side without question.
There has been a large volume of contradictory statements by Democrats and Republicans on nominating a successor to Supreme Court Justice Antonin Scalia.
President Barack Obama has claimed that he is duty-bound to nominate a judge for the highest judicial court in the land, and that his nominee is entitled to an up-and down vote. Conversely, several Republicans have been arguing that tradition dictates that a presidential nomination and Senate confirmation for a Supreme Court nominee do not take place in an election year.
As it happens, none of these claims hold water.
Election year Supreme Court vacancies have been filled by Senate-approved nominees in all six occurrences since 1900. The President certainly has the right to put forward a Supreme Court nominee in his final year, but he has no obligation to do so. And the Senate is not duty-bound to confirm, or even vote upon, his nominee, election year or not.
President Obama’s push to obtain a vote on his eventual nominee also puts him at odds with a Democratic tradition of thwarting Republican judicial nominees.
In asserting that Republicans need to vote on his eventual nominee, President Obama has been compelled to publicly “regret” via his spokesman his own efforts, as senator from Illinois, to filibuster Supreme Court Justice Samuel A. Alito Jr.’s nomination in 2005.
Similarly, Vice President Joe Biden must be regretting his public assertion in the 1992 election year (which can be seen here) that the then-Democratic-controlled Senate should refuse consideration, let alone a vote, on a hypothetical George H.W. Bush Supreme Court nominee before that year’s presidential elections. The fact that Mr. Biden was then Senate Judiciary Committee Chairman makes it all the more difficult for Democrats to shrug off.
So what is the history regarding Supreme Court nominees?