Merrick Garland Nomination

⬅️ Hub: 60.3 Politics · Concept: Constitutional Hardball · Argument map: Supreme Court Expansion — Argument Map and Fact Check · Adjacent: Supreme Court Reform · Law

The 2016 refusal to consider President Obama’s nomination of Judge Merrick Garland to the seat left vacant by Justice Scalia’s death — the event that anchors nearly every contemporary argument for Supreme Court reform, and the case study that makes Constitutional Hardball concrete.

The one-sentence version

The Senate held no hearing, no committee vote, and no floor vote on a Supreme Court nomination for 293 days, and the seat was ultimately filled by the next president. The refusal was entirely legal. Whether it was unprecedented depends on a distinction — between declining to confirm and declining to consider at all — that is where the whole dispute lives.

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Timeline

The 2020 contrast that made it decisive

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The Numbers That Get Cited

Know which number answers which question

• 293 days — how long the nomination was pending without action. The record.
• 422 days — how long the seat was empty (Scalia’s death to Gorsuch’s swearing-in). The longest since Congress fixed the Court at nine in 1869; the prior record was roughly 390 days (Fortas’s resignation, May 14, 1969, to Blackmun’s oath, June 9, 1970). Sources give both 389 and 391; the endpoints are firm, so quote the dates rather than a day count.
• 269 days — how long before the 2016 election Scalia died.
• 46 days — how long before the 2020 election Ginsburg died. The juxtaposition of 269 and 46 is the entire rhetorical payload of the Democratic case.

Do not mix these up in argument; the 293/422 confusion is common and gets caught.

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The Stated Rationale, and How It Shifted

McConnell, February 13, 2016 — unconditional:

“The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president.”

March 2016 — he added that Republicans were “following a longstanding tradition of not filling vacancies on the Supreme Court in the middle of a presidential election year.” PolitiFact rated this False; no such tradition existed. He also began citing the divided-government data point (no opposite-party election-year vacancy filled since 1888) — which matters, because it means the later defence was not invented from nothing.

September 18, 2020 — the standard has changed:

“Since the 1880s, no Senate has confirmed an opposite-party president’s Supreme Court nominee in a presidential election year.”

PolitiFact rated the shift a “Full Flop.” The 2016 framing was “let the voters decide”; the 2020 framing was “the voters already decided in 2018.”

Graham’s is the version with no defence

Lindsey Graham, March 2016: “I want you to use my words against me” — pledging that a vacancy in the final year of a Republican president’s first term should also wait for the next election. He repeated it in October 2018. In 2020 he supported immediate confirmation: “after [Brett] Kavanaugh, the rules have changed, as far as I’m concerned,” later conceding: “You could use my words against me and you would be completely right.”
→ NPR

Graham’s two stated reasons, examined

When pressed on the reversal, Graham gave two justifications. They are worth separating, because one is far better supported than the other.

Reason 1 — the 2013 nuclear option. Accurate but incomplete. Reid did trigger it in November 2013 (52–48), and it did make judicial confirmations easier by simple majority. What the retelling omits: Reid explicitly excluded the Supreme Court. It was McConnell who removed that carve-out in April 2017.

Reason 2 — Kavanaugh. The full record of that confirmation is in Kavanaugh Confirmation 2018. Graham’s claim was that Schumer “and his friends in the liberal media conspired to destroy the life of Brett Kavanaugh and hold that Supreme Court seat open.” This decomposes into two very different claims:

The strongest form of Graham’s grievance doesn’t need “conspiracy” at all: it rests on the Julie Swetnick allegation, advanced through Michael Avenatti, which was the least substantiated of the three and which Senate Republicans referred for criminal investigation. The argument is that one clearly unreliable accusation, injected late, contaminated the handling of the others. That is a defensible process complaint without requiring a plot.

Why the reasons don’t rescue the pledge

Both are reasons for changing his behavior. What Graham pledged in 2016 was unconditional — “use my words against me.” A commitment that dissolves upon the other side’s misconduct is not a rule; it is conditional cooperation, defect-if-defected-against.

That is precisely the theory of norms that pro-expansion advocates use to justify retaliation. Graham and the court-packing advocates hold the same account of when norms bind. They disagree only about who defected first — which is the unanswerable question the whole debate keeps circling. See Constitutional Hardball.

Further evidence the rationale was pretextual: just before the 2016 election, three Republican senators said that even if Clinton won, a Republican Senate would block any nominee she put forward for her entire term — which is incompatible with “let the voters decide.” McConnell also told a conservative audience in 2019, before any vacancy existed, that the Senate would certainly confirm a Trump nominee in 2020 (both reported in Klarman’s Harvard Law Review Foreword).

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Was It Unprecedented?

This is the crux, and the honest answer has two parts.

Blockades are old — the practice is not new

The sharpest comparison: 1969–70, the other Fortas vacancy

The previous record-holding vacancy is the best available illustration of what makes 2016 different — and it is routinely confused with the 1968 episode above, because both involve Abe Fortas and the blamed party flips between them.

Fortas resigned May 14, 1969 over the Louis Wolfson affair — a $20,000-a-year consultancy from a financier then under federal investigation. Nixon faced a Senate that Democrats controlled roughly 57–43, and lost his first two nominees:

Why this is the best answer to “the Senate has blocked nominees before”

Senate Democrats caused a ~390-day vacancy, so in the narrow causal sense the delay is theirs. But almost nobody calls it a stolen seat, and the reasons are exactly the ones that distinguish 2016:

1. Every nominee got hearings and a recorded floor vote. Advice and consent was exercised, not withheld. This is the confirm/consider distinction in its purest form.
2. The grounds were ethical and qualifications-based, not raw ideology — in a Senate hypersensitized to judicial ethics because Fortas had just resigned over precisely that.
3. Members of the president’s own party crossed over. Senior Republicans joined Democrats against Haynsworth rather than risk another ethics scandal. Not a party-line blockade.
4. Nixon still filled the seat — unanimously. The president in office when the vacancy arose made the appointment.

Senator Roman Hruska’s defense of Carswell remains the episode’s monument: “Even if he was mediocre, there are a lot of mediocre judges and people and lawyers… They are entitled to a little representation, aren’t they?” It did not help.

The irony worth keeping: the seat Democrats fought two nominees to keep from Nixon went to Harry Blackmun — who three years later wrote Roe v. Wade. A useful caution for anyone confident that appointments determine outcomes, and an example of the drift that Stephen Sachs argues conservatives read as their evidence the game is rigged. → Constitutional Hardball

But the completeness was new

The Presidential Commission’s finding is the most authoritative statement available, and it is careful:

Critics “emphasize that the Senate majority’s refusal to take any formal action at all on that nomination broke important new ground, departing from historical practice dating back to the nineteenth century.”

The sharpest version comes from Kar and Mazzone, The Garland Affair, 91 N.Y.U. L. Rev. Online 53 (2016). Only six times has a nominee received no confirmation hearing at all:

• Three involved a genuine lame duck — a president whose successor had already been elected. That is the scenario McConnell’s rationale actually fits, and 2016 was not it: Obama had ten months left and the election had not happened.
• Three occurred in 1866 or earlier and involved an “accidental” president — a Vice President elevated by death (Tyler, Johnson) who had been repudiated by the party that put him on the ticket. Those blockades reflected intra-party disputes and carried little risk of retaliation, which is what makes them weak precedents.

The steelman for the Republican side, stated fairly

The Commission records it: “Judge Garland was nominated when the White House and the Senate were controlled by different political parties, while Justice Barrett was nominated when both institutions were controlled by the same party.” The CRS data fit this with real precision — of 14 election-year vacancies (1789–2020), the four left unfilled all occurred under divided control, and of the seven filled in the same year, six were under unified control. The last opposite-party election-year vacancy filled was Melville Fuller’s in 1888.

Two caveats. First, this defence does not match McConnell’s own February 2016 words, which contained no such condition, and it does not touch Graham at all. Second, fourteen data points spread over 231 years is thin evidence for a “convention” — the pattern may be circumstance rather than rule, which is precisely what political scientist Sarah Binder concluded about the parallel 2016 claim.

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Why It Matters

• It is the origin point of the modern reform debate. The Commission: current calls to expand the Court “stem most immediately from the Senate’s refusal to act on President Obama’s nomination of Judge Garland.”
• It supplies the “unpacking” argument. Klarman’s framing is that McConnell “managed to shrink the size of the Court to eight for one year, then increase it back to nine after Trump became President” — making expansion restitution rather than retaliation. See Supreme Court Expansion — Argument Map and Fact Check.
• It is irreversible in a way most hardball is not. Klarman’s own concession is the key: the Jeffersonians could undo the 1801 court-shrinking “only because Jefferson won the 1800 election.” Clinton lost, so the seat could not be recovered by winning — which is what pushes reformers toward structural remedies.
• It changed Senate procedure permanently. The 60-vote threshold for Supreme Court nominees is gone, which lowers the cost of every future confirmation fight.

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Open Questions

• Is “declining to consider” genuinely different in kind from “declining to confirm,” or only in degree? Everything turns on this and it has no agreed answer. The 1969–70 vacancy is the cleanest test case: a comparably long delay caused by the opposition party, which almost nobody characterizes as illegitimate — because votes were held.
• If the distinction is real, does it survive strategic use? A Senate that wanted a blockade with cover could hold hearings and vote every nominee down indefinitely, producing the 2016 outcome by 1969–70 means.
• Is the divided/unified-government distinction a real constitutional convention, or a pattern retrofitted onto fourteen data points?
• Does a first-of-its-kind procedural move license a first-of-its-kind structural response?
• Would a Garland confirmation have changed the Court’s trajectory as much as both sides assume, given he was among the most moderate plausible nominees?

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Key Sources

Primary

• Presidential Commission on the Supreme Court — Final Report (2021) — official bipartisan account
• Senate roll call: Barrett confirmation, Oct. 26, 2020
• Senate roll call: Garland confirmed Attorney General, Mar. 10, 2021
• Obama White House archive — the March 16, 2016 nomination announcement

Official and Academic

• CRS, The Scalia Vacancy in Historical Context (R44773)
• CRS, Supreme Court Vacancies That Occurred During Presidential Election Years (IN11514)
• CRS, Final Action by the Senate on Supreme Court Nominations During Presidential Election Years (IN11519)
• Kar & Mazzone, The Garland Affair (2016) — the six-nominations analysis
• Michael Klarman, The Degradation of American Democracy—and the Court (2020)

Fact-Checks

• PolitiFact — McConnell’s flip-flop
• PolitiFact — the “80-year tradition” claim
• FactCheck.org — Cruz and Rubio on Court “precedent”
• PolitiFact — is there a “Biden Rule”?

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Cross References

• Constitutional Hardball — the concept this event exemplifies
• Supreme Court Expansion — Argument Map and Fact Check — the argument built on it
• Supreme Court Reform · Abolishing Filibuster · Ending Gerrymandering
• Law · Republican Party · 60.3 Politics