BBC 5 Radio Interview on Ted Cruz and his Phony Supreme Court "Tradition"

On February 25, BBC 5 Radio program "Up All Night" with Rhod Sharp interviewed me about the Supreme Court vacancy and the post I wrote about Ted Cruz. The audio file is below.

Ted Cruz's Phony Supreme Court "Tradition"

[This post originally appeared on History News Network]

“It has been 80 years since a Supreme Court vacancy was nominated and confirmed in an election year. There is a long tradition that you don't do this in an election year."—Senator Ted Cruz 

If he honestly believes it is not legitimate to nominate and confirm a justice in an election year, Ted Cruz must hate the appointment of Chief Justice John Marshall. John Adams nominated him in January 1801, after he lost his re-election bid to Thomas Jefferson in the election of 1800. Adams was a lame duck in the truest sense of the term—he was serving out the remainder of his term after being repudiated by the voters. Yet he did not hesitate to fill the vacancy in the Supreme Court, and Marshall was confirmed by a lame duck Senate.

Perhaps the most striking irony of Cruz’s position (and increasingly the position of the entire Republican Party) is that this absurd debate is taking place over the replacement of Antonin Scalia. If there is one thing Scalia was known for, it is his originalist interpretation of the Constitution: it means what the founding generation said it meant. So is seems appropriate to ask: what did the Founders actually do in such circumstances?

In the final year of his presidency, George Washington had two nominations to the Supreme Court approved by the Senate. It was an election year and he was not running for reelection. It doesn’t get more "original intent" than that. Adams could easily have left the Supreme Court vacancy for Jefferson—who had already been elected, after all, and would take office in a matter of weeks—and didn’t. That seems as clear as it could be. The founders saw no impediment to a president in the final year--or even in the final weeks--of the presidency successfully appointing new justices to the Supreme Court.

What about Cruz's contention about the last 80 years? Even that does not hold up.

The facts are pretty simple. In the last 80 years there has only been one instance in which a president was in a position to nominate a justice in an election year and did not have the nominee confirmed. In 1968, LBJ’s nomination of Abe Fortas to be Chief Justice to succeed Earl Warren (and of Homer Thornberry to take the seat held by Fortas) was blocked in the Senate, but not because of some alleged “tradition.” Certainly there were Senators who wanted the next president to name a new justice. But the opposition to Fortas had everything to do with the specific nominee and specific objections to him (particularly charges of cronyism and inappropriate financial dealings). To the best of my knowledge, no one cited Cruz’s “tradition” to say it was not appropriate for Johnson to nominate someone, or that it would have been inappropriate to confirm anyone.

A second instance took place 28 years earlier. In 1940, FDR nominated Frank Murphy in January of that election year and he was confirmed that same month. There was no “tradition” blocking that election-year appointment. (This also shows that Cruz got the math wrong—this happened 76 years ago, not 80.) [Note: The morning after this post first appeared, Orrin Hatch spoke on NPR and amended the claim to no "term-limited" president had had a nominee confirmed in an election year--evidently an attempt to exempt FDR's confirmed nominee from the "tradition."]

So, there were two instances similar to the current situation in the last 80 years. In one case the nomination was rejected and in the other it wasn’t. To Ted Cruz, this constitutes “a long tradition that you don't do this.”

Ted Cruz’s invention of this alleged "tradition" that we don’t nominate and confirm Supreme Court justices in an election year would be laughable if so many supposedly responsible political leaders were not taking it seriously.

It is absurd on the face of it. If the Republicans in the Senate want to block any nominee Barack Obama sends them, they have the votes to do it. But they should stop hiding behind the obvious fiction that doing so is part of some “tradition.” It would be nothing but the raw, cynical use of their political power. This suggestion that Obama should not even nominate someone (both John Kasich and Marco Rubio said so in Saturday’s debate), or if he does, that the nominee should be rejected out of hand simply because of the timing (as the Senate Majority Leader and many Republican Senators are now saying), is simply silly. 

True conservatives don’t invent traditions. They work to protect existing ones. Our true tradition is that the president nominates and the Senate votes, regardless of when the vacancy occurs. 

The speed with which Cruz jumped to make this claim and with which so many others have fallen in line, speaks to the nihilistic radicalism that has infected today's Republican Party. Any position can be taken if it produces the correct result. Facts can be denied, “traditions” can be invented. The only value taken seriously is “does it work to our advantage?”

This tactic may well work politically. It has already had the effect of framing the debate as “Should Obama nominate someone?” That is truly extraordinary. The actual question should be “Should the Senate confirm Obama’s nominee?” That’s a legitimate debate, but it would put the focus on the nominee and that person’s qualifications. By hiding behind this phony “tradition,” Republicans are trying to avoid having to show that a given nominee should be rejected on the merits. In short, they don’t want to take responsibility for rejecting someone who—in all likelihood—will be eminently qualified for the job. That’s not statesmanship. It’s cowardice.

Presidents and Precedents

Today is the federal holiday for Washington's Birthday, which we now refer to generically as Presidents' Day. There are many reasons to honor the first president, if only because of the many positive precedents he set--eschewing any form of address that smacked of royalty, e.g., or not running for a third term. The latter is particularly important, because had he done so and won (which he likely would have), he would have died in office in 1799, meaning that the new United States would have had the example of a president holding onto the office until death, instead of voluntarily stepping aside.

In that same light, there was another precedent set by his less-revered successor, that perhaps deserves our notice on Presidents' Day. Few historians would place John Adams up there with George Washington, Abraham Lincoln, or Franklin Roosevelt in the pantheon. But he did at least one thing that should not go unremarked: he gave up power, not because he wanted to, but because the voters wanted him to.

Adams ran for re-election in 1800 and lost the hotly contested campaign to his vice-president, Thomas Jefferson. Throughout the contest, the two sides had predicted calamity if the other prevailed. Abigail Adams believed that "the peace, safety, and security" of the nation depended on her husband's re-election. If he were not returned to office, she wrote, "I am mortally certain we shall never have another" election.

Yet, when the votes went against Adams, he accepted the verdict. Perhaps the near-simultaneous death of his son Charles helped put his electoral defeat into perspective. Rather than plotting how he might remain in office, or how he might later re-gain power, Adams moved on: "The only question remaining with me is what shall I do with myself?" No unquenchable thirst for power consumed him: "I must go out on a morning and evening and fodder my cattle, I believe, and take a walk every afternoon to Penn's Hill--pother in my garden among the fruit trees and cucumbers and plant a potato yard with my own hand."

This precedent is among the most under-appreciated in our history. Yes, Washington chose not to run a third time and gave up power. But Adams had tried to remain in power. He hoped that the garden he would be tending the next four years was the United States. It was not his will to return to Massachusetts in March 1801. He believed in all sincerity that the voters were wrong. But when the vote went against him, he accepted it and went home.

This unquestioning respect for process should have our admiration and emulation. In an age in which far too many people believe that the definition of a "bad process" is one that produces a result they do not like, Adams shows us that respect for process transcends our personal desires, beliefs, and ambitions.

As Pope Benedict showed last week, sometimes the best example to set is not grasping for power, or desperately clinging to it, but the graceful relinquishment of it.