Notes

Judge Garland’s votes on motions to rehear a panel decision en banc tell us nothing about his views on the merits of each case. A judge could vote in favor of or against rehearing a case en banc for any number of reasons that have nothing to do with the merits of the original decision. For example, a judge may vote to rehear a case because it involves an especially important issue that the full court should decide, regardless of outcome. Or a judge may vote to deny rehearing because the issue is set for decision at the Supreme Court, and there is no use in wasting more time at the circuit level. Indeed, in some cases a judge who sided with or even wrote the majority panel opinion will then vote to rehear the case en banc for reasons independent of the panel’s decision. Rarely does a judge give an explanation for their vote; thus, usually nothing can be inferred.

In 2007, Garland voted in favor of rehearing en banc a case in which the original 3-judge panel had voted to strike down D.C.’s decades-old handgun ban. The case was not heard en banc, however, and therefore Garland never weighed in on the merits of the case. Instead, the case went straight to the Supreme Court which held, for the first time ever, that the Second Amendment guaranteed an individual right to bear arms. Because Garland did not offer a written explanation of his vote, there is no way to know how he would have ruled on the merits.
In 2015, Garland voted against rehearing en banc a case in which the original 3-judge panel had denied a challenge to the contraception mandate under Obamacare. The panel’s decision aligned with all but one other circuit that had ruled on these challenges at the time. The case was not heard en banc and is now pending (along with 6 other cases) before the Supreme Court. Again, the lack of written explanation means that Garland’s views on the case are unknown.
MYTH: The “Biden Rule” stands for the principle that the Senate should never confirm a president’s nominee to the Supreme Court during a presidential election year.
FACT: The “Biden Rule” had never existed until Republicans in the Senate decided to obstruct President Obama and abort their own constitutional duties to fill the Supreme Court vacancy created by Justice Antonin Scalia’s death. The rule is based on a floor speech then-Senator Joe Biden gave in the summer of 1992, but the situation that he was speaking about—a Supreme Court justice all of a sudden deciding to retire only months before a presidential election—never came to pass. Biden never spoke about what should happen if, instead, a justice passed away.
FACT: The Full Biden Rule takes into account the rest of Biden’s floor speech that Republicans conveniently leave out:
“If the president consults and cooperates with the Senate [in naming a Supreme Court nominee], or moderates his selection absent consultation, then his nominee may enjoy my support as did Justices Kennedy and Souter.”
The Full Biden Rule, then, stands for the principle that a consensus nominee that enjoys support from both sides of the aisle—like Judge Merrick Garland—should be acted upon by the Senate without reservation.
MYTH: President Obama should not nominate a Supreme Court justice because the people should have a say in who the next justice should be through their votes in the next presidential elections.
FACT: Americans’ voices were heard loud and clear when they re-elected President Obama in 2012 to carry out the constitutional duties of the presidency for another 4 years. Those duties include putting forth a qualified nominee whenever a vacancy on the Supreme Court occurs while he is president—a nominee who can then be vetted and confirmed by the Senate.
FACT: Americans’ voices were also heard loud and clear when they elected the current members of the Senate over the last three election cycles. Those senators were elected to carry out the constitutional duties of the Senate, which include ensuring that any nominee offered by a sitting president for any Supreme Court vacancy gets timely consideration and a vote.
FACT: By refusing to even consider any nominee President Obama puts forward, Senate Republicans will essentially nullify the votes cast by millions of Americans in the presidential and Senate races that have taken place over the last six years.
FACT: A recent poll shows that 56 percent of Americans want the current Supreme Court vacancy to be filled by a nominee put forward by President Obama. Another poll done on behalf of Alliance for Justice Action Campaign and 10 other organizations showed that 69 percent of Americans think Republicans should hold a hearing and a timely vote on the president’s nominee.
FACT: Republican Senator Ron Johnson has admitted that the GOP’s blockade of President Obama’s nominee is pure politics and not about letting the people have a voice.
MYTH: President Obama should not nominate a Supreme Court justice because he is a “lame duck” president and thus should not be allowed to fill a Supreme Court vacancy during an election year.
FACT: President Obama is not a “lame duck” president. According to Merriam-Webster, a lame duck is “an elected official or group continuing to hold political office during the period between the election and the inauguration of a successor.” This usage has been around since the mid-nineteenth century and is the reason the Twentieth Amendment, which shortens the period between an election and the start of the next Congress and president, is referred to as the “Lame Duck Amendment.” Thus, President Obama will not be a lame duck until after the November elections.
FACT: Thirteen (13) presidents have filled Supreme Court vacancies during a presidential election year. Our first president, George Washington, established this precedent. In 1796, Washington nominated Samuel Chase and Oliver Ellsworth to two vacancies on the Supreme Court. In fact, Ellsworth was nominated to the Chief Justice position on the Court. The Senate immediately confirmed both nominees. Importantly, these nominations and confirmations occurred the same year that the nation faced its first truly contested presidential election after Washington announced that he would not seek a third term.
FACT: The most recent president to fill a Supreme Court vacancy during an election year is Ronald Reagan. In 1988, the Democratically-controlled Senate unanimously confirmed Reagan’s nominee to the Court, Anthony Kennedy.
FACT: The 13 presidents who have filled Supreme Court vacancies during a presidential election year are:
George Washington (1796, Justice Samuel Chase and Chief Justice Oliver Elsworth)
Thomas Jefferson (1804, Justice William Johnson)
Andrew Jackson (1836, Justice Philip Barbour and Chief Justice Roger Taney)
Abraham Lincoln (1864, Chief Justice Salmon Chase)
Ulysses S. Grant (1872, Justice Ward Hunt)
Rutherford Hayes (1880, Justice William Woods)
Grover Cleveland (1888, Justice Lucius Lamar and Chief Justice Melville Fuller)
Benjamin Harrison (1892, Justice George Shiras, Jr.)
William Taft (1912, Justice Mahlon Pitney)
Woodrow Wilson (1916, Justices Louis Brandeis and John Clarke)
Herbert Hoover (1932, Justice Benjamin Cardozo)
Franklin D. Roosevelt (1940, Justice Frank Murphy)
Ronald Reagan (1988, Justice Anthony Kennedy)
FACT: Of the 112 justices that have served on the Supreme Court, 17 of them have been confirmed in a presidential election year.
FACT: The Senate has confirmed 6 Supreme Court justices who were nominated by 6 presidents during a true lame duck period—after the incumbent president had been voted out of office and before the newly-elected president had been inaugurated. Benjamin Harrison submitted a nominee to the Senate in February 1893 after Grover Cleveland had defeated him in the 1892 elections. His nominee was nevertheless confirmed shortly thereafter. Rutherford Hayes made two nominations during his lame-duck period but only one was confirmed by the Senate. (The other nominee was confirmed after re-nomination by incoming president James Garfield.) John Tyler was able to secure Samuel Nelson’s confirmation to the Supreme Court in February 1845 after being defeated in the 1844 elections. The other three Supreme Court justices who were confirmed during lame-duck periods were nominated by presidents Martin Van Buren (February 1841), Andrew Jackson (March 1837), and John Adams (January 1801).
FACT: John Adams was the first president to establish true lame duck appointments to the Supreme Court. In January 1801, after he had lost his re-election bid to Thomas Jefferson, Adams nominated John Marshall to be Chief Justice of the Supreme Court. The Senate quickly confirmed Marshall before Jefferson’s inauguration despite Adams’s defeat at the polls. Chief Justice Marshall went on to become the longest-serving Chief Justice and one of the most influential members of the Court. This precedent is important because the actions of our founding fathers at the time sheds important light on what is permitted or required under the Constitution with respect to Supreme Court vacancies.
MYTH: The Senate has no obligation whatsoever to give a Supreme Court nominee a timely hearing or vote on confirmation.
FACT: Article II, Section 2 of the Constitution gives the Senate the duty to provide “advice and consent” on any person the president nominates to fill a Supreme Court vacancy. To refuse to give that advice and consent by not holding a hearing or vote on a nominee is a dereliction of that constitutional duty—a point endorsed by over 350 law professors in a letter organized by Alliance for Justice.
FACT: Since the Senate Judiciary Committee began holding hearings for Supreme Court nominees in 1916, no nominee has not received a hearing (save for nine nominees who were confirmed within 11 days).
FACT: Since the 1980s, every person appointed to the Supreme Court has been given a prompt hearing and vote within 100 days. The longest period of time a nomination has been pending prior to confirmation is 125 days. That was for Justice Louis Brandeis’ nomination in 1916.
FACT: Not since the Civil War has the Senate flat out refused to consider a Supreme Court nominee. In 1866, the Senate took no action on Andrew Johnson’s nominee, Henry Stanbery. The Senate’s inaction, however, was due to legislation Congress passed that year to reduce the number of justices on the Court, a measure that was meant to block any attempt by the embattled president to fill any vacancy on the Court.
FACT: Since 1955, every Supreme Court nominee confirmed during a period of divided government has been nominated by a Republican president and confirmed by a Democratic Senate. That accounts for 11 nominees in total:
Justice Clarence Thomas (George H. W. Bush, 1991)
Justice David Souter (George H. W. Bush, 1990)
Justice Anthony Kennedy (Ronald Reagan, 1988)
Justice John Paul Stevens (Gerald Ford, 1975)
Justice William Rehnquist (Richard Nixon, 1971)
Justice Lewis Powell (Richard Nixon, 1971)
Justice Harry Blackmun (Richard Nixon, 1970)
Chief Justice Warren Burger (Richard Nixon, 1969)
Justice Charles Whitaker (Dwight Eisenhower, 1957)
Justice William Brennan (Dwight Eisenhower, 1957)
Justice John Marshall Harlan (Dwight Eisenhower, 1955)