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Tuesday, March 08, 2016

Nixon, Burger, and timing of nominations

In an earlier post and comments, I predicted that there would not be someone in Justice Scalia's seat, ready to hear arguments, until the beginning of OT 2017. That prediction, which I discussed on a Fed Soc panel this afternoon, rests on three assumptions: 1) The Senate will not confirm an Obama nominee; 2) The new president will not nominate someone on Day 1 or 2 of her presidency and it may take a few weeks or months; and 3) confirmation, even with a Senate majority of the same party, will take about 2-3 months from nomination. This means it is highly unlikely we will have someone confirmed by the end of April, the date of the Court's final sitting for OT 2016. The next opportunity for the new Justice to participate in arguments and conferences is September (with the Long Conference) and October (the new term).

The second assumption may seem contestable. After all, this vacancy is going to be an explicit issue in the campaign and the new president takes office aware of the opportunity to save or shift (depending on who is president) the ideological/philosophical balance on the Court. But it seems to me the new President has to deal with too many more pressing issues, particularly executive-branch appointments, that take precedence over even a Supreme Court appointment.

Moreover, we have precedent for this situation--Richard Nixon. Nixon took office in January 1969 knowing that he could replace Earl Warren as Chief whenever he wanted.* Nixon campaigned against the Warren Court, so he certainly was no less aware of this opportunity than President Trump or Clinton will be.  Yet Nixon did not nominate Warren Burger until May (he was confirmed a month later). True, there is a distinction--the current nomination fills a vacancy and gets us away from a rump Court, while the Court in spring 1969 was working with the statutorily established membership, which may add some urgency to the former.. But Nixon no doubt wanted Warren off the Court as soon as possible, so he had as much of an incentive to make the appointment as soon as possible.

[*] Warren had tendered his resignation to Pres. Johnson in spring 1968, effective upon appointment of a successor. This meant that Warren would leave office as soon as a President--Johnson, Humphrey, or Nixon--appointed a successor.

Does anyone know the story of the dynamics in the White House regarding the Burger appointment? Does anyone have thoughts on why it might have taken so long? If it is simply that other things take priority, is there any reason to believe it would be so different this time around?

Posted by Howard Wasserman on March 8, 2016 at 07:26 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


LOL, Palin...definitely a disaster.

Posted by: Ernesto | Mar 9, 2016 8:28:28 PM

AYY, having Sarah Palinc--- would be a disaster. Then anything from the Repubs would be a disaster also.

Posted by: Hank Ramey | Mar 9, 2016 5:51:27 PM

The move to pressure Fortas to retire did complicate things but thinking even Nixon was willing to let Warren end the term normally instead of complicating things just to get him off the Court a couple months earlier.

Posted by: Joe | Mar 9, 2016 11:02:48 AM

I go out of my way to use the standard terminology, in this case "him." Whenever someone objects, I smile and say this is something we need to do for the children. It usually baffles them enough that we can continue the conversation without additional PC distractions.

Posted by: Tregonsee | Mar 9, 2016 7:52:07 AM

AYY, doubtful. It's just a growing trend among academics to use the female pronoun rather than the grammatically correct (though I suppose in today's world sexist) masculine pronoun to refer to mix-gender groups. Which, when referring to the president is even more incomprehensible since, so far, it is not a mix-gendered group.

Posted by: YesterdayIKilledAMammoth | Mar 9, 2016 1:09:24 AM

"The new president will not nominate someone on Day 1 or 2 of HER presidency" Did you have someone specific in mind? Gov. Palin maybe?

Posted by: AYY | Mar 9, 2016 12:59:03 AM

You might remember that The Brethren starts with Earl Warren's November 1968 gathering with his clerks, at which he lamented Nixon's election and wrote down the name of the man he thought would replace him: "Warren E. Burger." The book says it took some time to go through other candidates for Chief Justice, including Potter Stewart, who took himself out of the running, and then there was Nixon's need to use Chief Justice Warren to convince Fortas to resign. Once Fortas had resigned, Nixon nominated Burger quite quickly.

Posted by: Mark Regan | Mar 8, 2016 10:44:08 PM

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